UNITED STATES OF AMERICA §
V. § NO. ________________
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
DEFENDANT’S MOTION IN LIMINE A TO THE HONORABLE _____________________, JUDGE OF THE UNITED STATES COURT FOR THE _______________ DISTRICT OF TEXAS:
NOW COMES Defendant ______________, by and through his undersigned attorney, and files this Supplemental Memorandum in Support of Defendant’s Motion in Limine A.
Defendant respectfully submits that, in addition to the grounds previously raised, that Federal Rules of Evidence Rules 413 and 414, violate the Due Process Clause of the Fifth Amendment to the United States Constitution. The rules in question fail the Due Process test of fundamental fairness. The rules are unconstitutional on their face and as applied against __________________.
In addition, should the Court allow admission of the evidence in question, __________________ would be prejudiced. This is so because introduction of said evidence would authorize the jury to overvalue the character evidence and to punish __________________ for past allegations and to convict __________________ for who he is rather than for what he has done.
Rules 413 and 414 create a presumption in favor of admissibility. This presumption violates fundamental fairness. The rules violate the due process clause on their face because they permit admission of prior acts evidence to show propensity and as such necessarily violate Defendant’s right to a fair trial. It is basic to American jurisprudence that evidence of prior crimes introduced for no purpose other than to show criminal disposition violates the due process clause. See Spencer v. Texas, 87 S.Ct. 648 (1967). Propensity evidence creates a danger that juries will convict based not only on evidence beyond a reasonable doubt of the charged crime, but on evidence of past bad acts. Anglo-American law has long adhered to the principle that an accused must be tried only for the act with which he is charged rather than on his past misdeeds or inferences about his character arising from those misdeeds.
It is a universal rule, in the trial of criminal cases, that nothing shall be given in evidence which does not directly tend to the proof or the disproof of the matter in issue. The prosecuting officer is not, therefore, allowed to give evidence the facts tending to prove a similar, but distinct offense for the purpose of raising an inference or presumption that the accused committed the particular act with which he is charged.
Bird v. U.S., 180 U.S. 356, 360 (1901).
John Wigmore, in his treatise, Evidence in Trials at Common Law, recognized “the overstrong tendency to believe the accused guilty of the charge merely because he is a likely person to do such acts [and] the tendency to condemn not because the accused is believed guilty of the present charge but because he escaped unpunished from other offenses.” 1A John H. Wigmore, § 58.2, at 1350 (Peter Tillers rev. 1983). Former Justice William Brennan expressed the same concern in his dissent in Dowling v United States, 493 U.S. 342, 361-62 (1990) (“the jury may feel that the defendant should be punished for that [extrinsic] activity even if he is not guilty of the offense charged.”). In Marshall v. Lonberger, 459 U.S. 422, 438-39, n.6 (1983), the Supreme Court indicated that the harm flowing from the admission of such evidence may amount to a violation of the Due Process Clause. Justice O'Connor reiterated that suggestion in her opinion, concurring in part and dissenting in part, in Estelle v. McGuire, 502 U.S. 62 (1991). The long standing rule of law that creates the band against propensity evidence has been honored by the Courts for such a long time that it must be taken to be due process of law. Hurtado v. California, 4 S.Ct. 111, (1884). The rules in question create a presumption of guilt that undermines the requirement that the prosecution must prove guilt beyond a reasonable doubt.
Finally, the rules in question are unconstitutional as applied to __________________ because __________________ was never arrested, charged, or convicted, of any of the prior extraneous acts of conduct that the prosecution intends to offer pursuant to said rules. Respectfully submitted,
I certify that I served a copy of the foregoing Defendant’s Motion and Memorandum of Law in Support of Motion in Limine A on the United States Attorney for the __________ District of Texas (ATTN: Assistant United States Attorney, _________) by delivering same to his office at__________________________, on ___________________, 20____.