Fighting Use of Other Crimes Evidence; Cook County, Chicago, IL
March 30, 2012
In some cases, the State will seek to introduce other crimes evidence in an effort to show a defendant’s propensity to commit crimes. Evidence of other crimes is not admissible for that purpose because evidence of other crimes can over-persuade the jury, which may convict a defendant based on its belief that the defendant is of bad character and deserves punishment. People v. Lindgren, 79 Ill..2d 129, 137 (1980). Admission of such other crimes evidence invites an impermissible inference that because a defendant has convictions from a decade ago, he is more likely to have committed this crime. Our courts have long recognized that jurors tend to find propensity evidence overly persuasive and give it too much weight, prompting them to prejudge defendants based on their generally bad records. Michelson v. U.S. 335 U.S. 469, 476 (1948); Lindgren at 137. As the Michelson Court explained: in “practical experience, disallowance of propensity evidence tends to prevent confusion of issues, unfair surprise and undue prejudice.” The risk of misleading or over-persuading the jury is dangerous for the defendant. The real possibility that the jury would convict a defendant, based on his alleged prior bad acts alone, requires that an aggressive defense attorney fight any attempt by the state to introduce such evidence.
The probative value of the other crimes evidence is outweighed by its prejudicial effect requiring courts to exclude such evidence. People v. Illgen, 145 Ill. 2d 353, 364, 365 (1991). The Court must weigh the probative value of other crimes against its prejudicial effect. Id. Prejudice means “an undue tendency to suggest decision on an improper basis, commonly an emotional one, such as sympathy, hatred, contempt, or horror.” People v. Lewis, 165 Ill.2d 305, 329 (1995). When the Court weighs probative value against prejudicial effect, it must take into account the proximity in time to the charged offense, the degree of factual similarity to the charged offense and other relevant factors. The potential for prejudice is readily apparent if there is a lack of significant factual similarities between the incidents. The Illgen court stated that it is the similarity which increases the relevance of the evidence and ensures that it is not being used solely to establish the defendant’s criminal propensities. Illgen at 372,373. Further, there must be a high degree of identity between the facts of the crime charged and the other offense sharing distinctive common features so as to earmark both acts as the handiwork of the same person. Id. Often, the state bases its motion on such broad generalities that admissibility should be precluded. The potential for prejudice is readily apparent if there is no commonality between the victims and the incidents lack even a threshold similarity.
Also, other crimes evidence is often too remote in time to be admissible. Although Illinois courts have allowed evidence of other crimes to be used despite a substantial lapse of time, the evidence was admissible in those cases only to show the common plan, scheme and design of the defendant, to confirm the defendant’s identification and to demonstrate a lack of conspiracy by the victims. People v. Davis, 260 Ill. App. 3d 176, 191,192 (2nd Dist. 1994). Proper application of the balancing test firmly establishes the serious risk of undue prejudice to a defendant which would result from the admission of other crimes evidence.
If these issues apply to your situation, contact John McNamara for help.
CRIMINAL DEFENSE
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