Monday, January 25, 2010

Proof of Prior Criminal Conduct

One of the more knotty procedural issues at a criminal trial arises when a prosecutor seeks to place in evidence before a jury proof of a defendant's prior criminal conduct.

In the seminal case People v. Molineux, 168 N.Y. 264 (1901), the New York Court of Appeals concluded that evidence of a defendant's prior criminal conduct is admissible only when relevant to establish motive, intent, absence of mistake, a common scheme, or the identity of the person charged with the crime on trial.

In the federal courts the issue is addressed by Federal Rule of Evidence 404. While Article 45 of the CPLR covers many evidentiary matters, New York has not codified the Molineux rule. As a result, there is now an enormous body of case law, developed since 1901, interpreting Molineux.

The basic concern is one of policy: a person should not be convicted of a crime because of his "bad character" or because his prior conduct indicates he has a propensity to commit the crime for which he is now on trial. Guilt must be established solely by evidence which specifically shows the commission of the crime being tried. But as the vast body of case law indicates, applying the policy is not always a simple matter.

The latest addition to the case law is recommended reading: the opinion of Justice Steven W. Fisher for the Appellate Division, Second Department, in People v. Wilkinson . The decision contains an excellent survey of the application of the Molineux rule by New York's appellate courts. The decision can be found here.

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