Prior Bad Acts: Severance Of Trials In Multivictim Cases
District attorneys typically allege that accusations of criminal sexual contact against separate victims are admissible in the separate victim trials and, therefore, the cases should be consolidated into one larger trial.
At Hark and Hark, we vigorously fight these consolidation/prior bad acts motions. It is imperative to prevent multiple victims from testifying in one case. The trial becomes one of propensity versus factual guilt or innocence. It is important to understand the rules that the courts must follow in deciding these motions.
The rules provide for separate trials if it appears that any party may be prejudiced by offenses being tried together. The decision to consolidate the trials is a discretionary decision and will occur where evidence of each particular crime would be admissible in separate trials of the other offenses. Offenses may be joined or indictments may be consolidated where the separate offenses show the defendant’s unusual or distinctive modus operandi.
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Evidence of prior bad acts is generally not admissible if offered merely to show bad character or a propensity for committing bad acts. This is different from the rule that states evidence of other crimes is admissible where proof of one crime naturally tends to show who committed the other (e.g., the rapist used a specific type of knife or said specific words).
As well, these rules are read together with the requirement that such evidence be capable of separation by the jury so as to avoid danger of confusion and whether the defendant will be unduly prejudiced by the consolidation of offenses.
Several exceptions to the general rule of inadmissibility exist and allow for introduction into evidence to prior bad act if such evidence indicates:
(3) absence of mistake or accident
(4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one naturally tends to prove the others
(5) identity of the person charged
(6) impeaching other evidence
(7) prior criminal history of witness/victim intimidation
(8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called “res gestae” exception)
The problem with unindicted, uncharged crimes is that there is no evidence of the alleged event but for the victim’s words. Whether that person appears or the hearsay evidence is permitted through some exception, the difficulty will be that a defendant may be proven guilty in one occurrence, because of the mere accusations of another in an unrelated unsubstantiated matter.
Attorney Richard Q. Hark has written extensively on the topic and is respected for his insight into the subject.
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