Oregon Character Evidence: Criminal Defense Lawyer Analysis (9 of 10)
A Framework for a Criminal Defense Attorney to Analyze Acts Elected by State:
Irrelevant for intent to do X.
The State of Oregon often intends to offer evidence of domestic violence against another domestic partner to prove that a charged defendant committed a crime in the current case.
To determine if this is propensity evidence or if it is actually relevant to intent, the Johns factors must be employed. Assume an Oregon domestic violence charge in this hypothetical:
The lack of material similarities, particularly in the actus reus, makes it arguable not relevant to intent. There are no meaningful characteristics that are similar that somehow make his state of mind provable due to a prior bad act that had nothing to do with charged victim.
403 Balancing: Minimally relevant, unfairly prejudicial, etc.
If the trial court finds that this evidence is somehow relevant to intent, it should still be excluded under OEC 403, because it is often only minimally relevant and is outweighed by its prejudicial value and is therefore unfairly prejudicial. Additionally, it is confusing for the jury, too time consuming to litigate this trial within the trial, too distracting to the real issues of whether she was pushed, a high risk of undue delay, cumulative, etc.
Furthermore, the more inferences required in an inference chain to make evidence relevant to a material issue at trial and the more speculative steps necessary within that inference chain, the more likely the evidence has little relevance and the more likely that improper speculation, conjecture, and emotionally-based decision making will occur, not to mention the high risk of the jury using the evidence for the improper purpose of propensity evidence.
As previously discussed, the case law never finds that evidence is not unfairly prejudicial as a matter of law due to a finding that jury instruction would be followed by the jury. Instead, the opinions give discretion to the trial court to make the finding that the trial court believes that a jury instruction will be followed. This is a highly discretionary finding. It is high time that trial courts accept the reality of prior bad acts and human nature. These prior acts are intended to inflame the jury, plain and simple. Humans are not computers that can disregard data with a keystroke. The research on confirmation bias is sound and clear. Once a bias is injected into a case or other situation, simple instructions to disregard, such as a jury instruction, are not a cure-all. Any conclusion to the contrary is a legal fiction and intellectual dishonesty.
A Limiting Instruction to the Jury Cannot Mitigate the Prejudice to an Oregon Criminal Defendant.
Oregon criminal defense attorneys and murder defense lawyers should encourage the trial court to make findings that no jury instruction can cure the unfairly prejudicial impact or confusion of the issues for each of the “other acts” evidence elected. There has been substantial developments in the social science literature that now allow a trial court to make a reasoned, evidence/research-based decision on the likely uselessness of a limiting instruction to the jury in this context. The risks have a basis in Due Process/fundamental fairness and state and federal constitutional rights to a fair trial.
As it turns out, reliance on a limiting instruction is essentially a legal fiction because the jury, in most circumstances, disregards the instruction or, sadly, the jury instruction ends up highlighting the inadmissible evidence or inference and poisoning the jury’s reasoning. Trial courts should apply reality to dealing with evidence rather than hiding behind useless limiting instructions that cannot force the human mind to do something it is not designed to do. When something is highly prejudicial, no jury instruction in the world can solve that prejudice.
Prosecutors of crimes spend their resources proving what happened in the charged crime rather than relying on other acts that poison the jury. The State must be stopped from hiding behind the claim of “state of mind” evidence, when everyone knows that the jury is going to think that a defendant is a bad person who did bad stuff in the past and has a bad character and is thus likely to have committed the charged crime. No matter how many time the State cries out “motive” and “intent,” the damage is done when the evidence is admitted and cannot be repaired through a limiting instruction. The jury is likely to misuse such other acts evidence. This is not justice, as the research empirically demonstrates.
The “classic” research on the limits of limiting instruction was conducted by Lieberman and Arndt and explained in Understanding the Limits of Limiting Instructions, Psychol. Pub. Pol’y & L. 2000, Vol. 6, No. 3, 677-711 (attached hereto as Exhibit A). The authors point out that “[e]mperical research has demonstrated that such [limiting instruction] safeguards are relatively ineffective and sometimes produce a backfire effect, resulting in jurors being more likely to rely on inadmissible information after they have been specifically instructed to disregard it.” Id. at 677 In particular, the authors cite the issue of concern in A defendant’ case: that “a judge may allow prior conviction information to show that a defendant had a motive, an opportunity, specific knowledge, or has used a common pattern, but again jurors are instructed not to infer negative traits about the defendant.” Id. at 685 (citing Cox, M., & Tanford, S., Effects of evidence and instructions in civil trials: An experimental investigation of rules of admissibility, Social Behaviour, 4, 31-55 (1989)). “With few exceptions, empirical research has repeatedly demonstrated that both types of limiting instructions [to disregard or use only for a particular purpose] are unsuccessful at controlling juror’s cognitive processes.” Id. at 686.
Limiting Instructions Do Not Work.
Research has consistently shown that limiting instructions do not work with prior bad acts. In 1973, Doob and Kirshenbaum created a hypothetical burglary case and told half of the participant “jurors” that the the defendant had a prior record and the other half that he did not. Id. (citing Doob, A. N., & Kirshenbaum, H. M., Some empirical evidence on the effect of S. 12 of the Canada evidence act upon an accused, Criminal Law Quarterly, 15, 88-96 (1973)). “Although participants were also presented with judicial instructions informing them that prior record information should be used to determine credibility, rather than as an indicator of guilt, the instructions did not serve to significantly reduce average ratings of guilt.” Id. (emphasis added). While one possible flaw of this study is that the jurors did not deliberate, future studies cured that deficiency and came up with consistent empirical evidence that the limiting instructions are ineffective.
A subsequent study that did allow deliberations illustrated that the inadmissible evidence did affect the outcome and content of the deliberations. Hans, V. P., & Doob, A. N., Section 12 of the Canada evidence act and the deliberations of simulated juries, Criminal Law Quarterly, 18, 235-253 (1976). Groups who read the evidence of the conviction “made more positive statements about the prosecution’s evidence and more negative statements about the defendant.” Lieberman & Arndt at 686 (citing Hans & Doob). The authors of that study concluded that “jurors use evidence regarding convictions as an indicator of guilt rather than to determine the credibility of statements made by the defendant, despite judicial instructions to the contrary.” Id. There is no reason that the literature on prior convictions would not apply to all “other act” evidence.
The next relevant study was conducted by Wissler and Saks in 1985. They received similar results when mock jurors were told that the “defendant had previously been convicted of either a similar crime, a dissimilar crime or perjury, or were given no information about a prior record.” Id. at 686 (citing Wissler, R. L., & Saks, M. J., On the inefficacy of limiting instructions, Law & Human Behavior, 9, 37-48 (1985)). The interesting conclusion of this research was that the defendant’s credibility level was not actually affected by the evidence (the intended purpose of the evidence). Instead they used the evidence to infer guilt, an improper purpose. Id.
Why Limiting Instructions Do Not Work.
There are a variety of factors that cause limiting instructions not to be effective. The effects of the psychological phenomenon are illustrated in the above research (as well as lawyers’ and judges’ real-world experience). First, the similarity of the prior conviction evidence to the current case is a large factor in misapplying that evidence. Id. at 687. This means that the more relevant the other act evidence is under Johns, for instance, the more likely it will be misused for an improper purpose and thus be unfairly prejudicial. Other research supporting this hypothesis showed that “jurors were more capable of correctly following instructions and ignore inadmissible evidence about prior convictions when the prior convictions were for dissimilar offenses.” Id. Consequently, and ironically, the more similar and thus relevant for intent, the more likely it will be used for an improper purpose.
The second variable in supporting the cause of the misuse is very relevant to Our case. It appears, based on the empirical research, that the weaker the prosecution’s case, the more likely that the jury will not follow the limiting instruction. Id. Conversely, the stronger the State’s case, the more likely the jury will not misuse the evidence and will in fact follow the instruction. This conclusion thus requires the trial court to delve into the strengths of the prosecution’s case as a whole when determining if a jury instruction can mitigate the unfair prejudice. In Our case, the State has repeatedly been unable to show any admissible evidence that We pushed Ms. Casto. In fact, the scientific evidence overwhelmingly supports a slip and fall. Therefore, the only way the State can overcome the principles of physics is for the jury to overcome and ignore a limiting instruction.
The authors also discuss how the jury simulations are actually a conservative measure of limiting instruction effectiveness. The authors conclude that the more serious the crime in the research, the more likely the mock jurors would be improperly influenced despite a limiting instruction. Id. at 687. This is because jurors are concerned that when there is a real chance of returning a potentially dangerous defendant to the community, they may be more inclined to consider all information of probative value, regardless of its admissibility. In essence, real jurors in real trials would be more inclined to not follow limiting instructions than the research indicates, although this may be mitigated by the deliberation process somewhat but not in a totally effective way. See Kerwin, J., & Shaffer, D. R., Mock jurors vs. mock juries: The role of deliberations in reactions to inadmissible testimony, Personality and Social Psychology Bulletin, 20, 153-162 (1994); Hans & Doob (1976); Kramer, G. P., Kerr, N. L., & Carroll, J. S., Pretrial publicity, judicial remedies, and jury bias, Law & Human Behavior, 14, 409-438 (1990).
Other reasons that curative/limiting instructions are not effective are found in a large body of psychological research. Details about the research supporting these findings are located in Exhibit A at 691-703. The first psychological explanation is “belief perseverance.” This is the research-supported concept that “once individuals form a belief, the belief becomes highly resistant to change and, [therefore] influences how they perceive and construct future information.” Id. at 691. Thus, despite a limiting instruction, a juror will make an impression of the defendant based on that impermissible inference and then filter all other evidence through that improper filter, tainting the decision-making process and illustrating the pervasiveness of unfairly prejudicial material (it cannot be mitigated by jury instructions).
The second psychological phenomenon that causes limiting instructions to be ignored is called “hindsight bias.” This is “where once the outcome to a particular event is known, individuals are prone to overestimate the likelihood that the outcome would have occurred.” Id. at 692. Thereafter, events that support “that outcome are better remembered than events that do not support that outcome, and alternative outcomes seem less likely to have occurred.” Id. That causes jurors to be less able to ignore information that they are aware of because they know the outcome of such information and thus fit the two outcomes together in hindsight.
For example, in a DV murder case, a jury would apply hindsight bias to the two known outcomes: death by domestic abuse and injury by domestic violence for slapping, puching, etc. The jury therefore is more inclined to misuse the other act evidence and conclude that the murder was inevitable due to that criminal defendant assaulting other domestic partners. Jurors simply cannot disregard this character evidence, and they then end up concluding improperly that the act (the push) must have happened because the prior assaults happened; it was inevitable. This is an impermissible inference that cannot be very well cured by a limiting instruction, given the research.
“Reactance theory” is the third psychological concept that explains the inability to follow limiting instructions. This complicated theory is best summarized this way: when you are told not to do something, you are more likely to want to do what you are told you are not permitted to do. Jurors become “psychologically aroused,” when they are told not to think a certain way and their brain causes them to want to think that way because their “free behaviors” are threatened. Id. at 693. As an example, if a juror is told, “Don’t think of an elephant,” they will think of an elephant.
In other words, in the courtroom setting, jurors may consider their ability to process any relevant probative information or information a free behavior. That is, they may feel that they should be the ones to determine relevance, especially if limiting instructions run counter to more global conceptions of justice. Id. at 694. It is just the way the human brain works and relying on limiting instructions is one of the greatest intellectually dishonest mechanisms in the justice system. Misuse of prior bad acts is too great of a risk that cannot be mitigated by jury instructions and are thus fundamentally unfair and a due process violation.
The final psychological model that explains the ineffectiveness of limiting instructions is called “ironic mental processes” or “ironic processes of mental control.” According to this theory, “any effort at mental control involves a combination of an active, conscious operating process that searches for thoughts indicative of the desired mental state and a more unconscious monitoring process that searches for indicators of unsuccessful mental control.” Id. at 697. This is truly the best example of “Don’t think of an elephant,” as an individual’s desire not to think a particular thought will cause someone to think of that particular thought that they are trying not to think about. Id. Any process to control or negate the thinking of such a thought will in fact initiate efforts to think of the thought. That is the “irony” of the theory.
This is particularly alarming in a courtroom setting, because it not only causes a juror to think of inappropriate inferences but also, in the process, causes the jurors to give more attention to the evidence offered. This in turn makes the evidence supporting an admissible inference more important than other evidence due to the mental efforts required to only use it for a proper purpose. The result is that the proper purpose is more influencing on a juror’s deliberations than other similarly situated evidence without a limiting instruction. This, in effect, results in an improper comment on the evidence in a subtle, subconscious way. It tells the jury to pay more attention to this other act evidence than the scientific evidence. This is therefore distracting to the jury and is another reason that it fails the balancing test.
Hearsay by deceased murder victim.
OEC 404(4)(b) specifically notes that other acts evidence is admissible, if relevant, except as otherwise provided by the rules of evidence relating to hearsay. Pursuant to OEC 802, hearsay is not admissible in Oregon, subject to several exclusions or exceptions. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to provide the truth of the matter asserted. OEC 801(3).
Thus, statements by a decedent is inadmissible hearsay, because it is an out of court statement offered to prove the abuse, unless an exclusion or exception applies. The exclusions of OEC 801(4) do not apply because the decedent is not available to testify.
It could be incorrectly argued that the “[t]hen existing mental, emotional or physical condition,” more commonly known as the “state of mind” exception set forth in OEC 803(3) applies because the statement contains information about the victim’s physical condition. This argument should fail. The state of mind (or in this case, physical condition) exception allows the admission of hearsay statements to prove the declarant’s condition, not the cause of such condition. But the statement is not admissible to prove the past events that caused the injury. Kirkpatrick’s, Oregon Evidence, 732 (5th edition 2007) states:
If the statement about the declarant’s state of mind is offered to prove the past events that caused that state of mind, the statement is not admissible under [803(3)]. For example, evidence that a murder victim made a statement expressing fear of the defendant is inadmissible if it is being offered merely to prove the occurrence of prior acts by the defendant causing that fear.
Further, even if the evidence of the abuse is admissible through a hearsay exclusion or exception, admission of the evidence violates the Our Oregon Constitution Article I, section 11 and Sixth Amendment to the United States Constitution rights to confront the witnesses against him. To overcome confrontation rights when a witness is unavailable, the hearsay evidence must have sufficient indicia of trustworthiness.
NEXT PAGE: Oregon Character Evidence: Jury Instructions (10 of 10)
 This is similar to the concept of confirmation bias. Confirmation bias is the tendency to search for, interpret, favor, and recall information in a way that confirms one’s beliefs or hypotheses, while giving disproportionately less consideration to alternative possibilities. The notion of confirmation bias is so well-established, so widely-accepted, that it is routinely included in the canon of what psychology professors teach entry-level students. This bias is therefore discussed in a textbook for first-year students. e.g., Gleitman, H., Gross, J. & Reisberg, D. (2011). Psychology / 8th edition. NY: WWNorton. It is also covered in textbooks for second-year students. e.g., Reisberg, D. (2015) Cognition: Exploring the science of the mind / 6th edition. NY: WWNorton.
There is also a considerable amount of research in confirmation bias focused on the judicial system. Confirmation bias is a problem for police officers, and shapes their interrogations. Kassin, S.M., Goldstein, C.J., & Savitsky, K. (2003). Behavioral confirmation in the interrogation room: On the dangers of presuming guilt, Law and Human Behavior, 27, 187-303.
Also, there is a body of research that once there is a confession (truthful or not) it creates confirmation bias that distorts the rest of the investigation. Kassin, S.M., Bogart, D. & Kerner, J. (2012), Confessions that corrupt: Evidence from the DNA exoneration case files, Psychological Science, 23, 41-45. And it is not just police and jurors who show this effect. A lot has been written recently about confirmation bias in the so-called “forensic sciences.” Kassin, S.M., Dror, I.E., & Kukucka, J. (2013), The forensic confirmation bias: Problems, perspectives, and proposed solutions, Journal of Applied Researching Memory and Cognition, 2, 42-52. Confirmation bias is also easy to show in eyewitnesses. For example, if you know someone has confessed (truthfully or not), it biases eyewitness identifications. Hasel, L.E. & Kassin, S.M. (2009), On the presumption of evidentiary independence: Can confessions corrupt eyewitness identifications?, Psychological Science, 20, 122-126. Then, finally, confirmation bias is also a problem for juries. The place this is best-documented is in the effect of pretrial publicity (PTP). Even if the jury succeeds in setting aside the PTP, the PTP can still create a “lens” through which the jury views all subsequent evidence. This is referred to as “predecisional distortion” of the evidence. In such cases, the jury can legitimately claim they followed a judge’s instruction to focus entirely on the trial evidence — but the jury will still be biased, because they viewed the evidence from a perspective that was biased from the start. Hope, L., Memon, A. & McGeorge, P. (2004), Understanding pretrial publicity: Predecisional distortion of evidence by mock jurors, Journal of Experimental Psychology: Applied, 10, 111-119.
 In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as provided by the Oregon Constitution and the United States Constitution. OEC 404(4)(c)-(d).
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