Nothing strikes fear in the hearts defense attorneys like a case involving both 803(c)(27) issues as well as 404(b) issues. They are a deadly combination and therefore, very difficult to overcome. Of course, the primary defense is to keep them out of the trial all together. Again, it is the skill used during these pre-trial motions that sets the experienced criminal defense attorneys from the pretenders. Its also the reason why these cases are more expensive than almost all other cases.
404(b) evidence otherwise known as other crimes evidence is just that, evidence of some other crime. While it cannot be used to prove that the defendant is more likely to be guilty because he did something bad at another time, that is the essential impact it has on the jury. Whether this evidence comes in or not depends on a variety of factors including who the judge is and what the defense is. If the defense is consent, then it will be more likely to come in. Of course, if there is 404(b) evidence that resulted in a conviction, the consent defense may be a long shot at best. If the defense is something other than consent, then the analysis will depend on the specific facts of the current allegations and the prior bad acts.
The first step to dealing with these issues is to see if there is even an issue at all. Not all defendants are honest with their attorneys because they don’t want to admit that they are bad or even have the defense attorney think that they could be a bad person. There is a perception that the attorney will not fight as hard for them if they are guilty. Thus, you have to get the defendant to tell you if anything may come up from anyone about any past issues regardless of whether or not they actually happened. You could also advise the State that your client is a first time offender (at least with regard to these issues). Either the prosecutor will agree with you or they will tell you about what their investigation uncovered.
The next issue to deal with is how much of your defense you give up to the State. Of course, pre-trial motions and reciprocal discovery can make keeping your defense under your hat quite difficult. However, there are at least some cases where only cross examination and an artful summation will win the day and thus, you can keep the prosecutor in the dark, at least officially. Most sex crimes prosecutors are quite skilled and thus, can sniff out your defense anyway. While the secret defense strategy may not advisable in most cases, it should at least be a consideration.
If a 404(b) motion is filed, the State must meet the four part test articulated in State v. Cofield, 127 N.J. 328 (1992) which is 1) the evidence is relevant to a material issues, 2) the other crime is similar in kind and reasonably close in time, 3) there is clear and convincing proof of the other crime and 4) the probative value is not outweighed by the apparent prejudice. While the defense should obviously attack all four factors, the key to victors will likely be factors 3 and 4. Factor 3 will require a hearing in which a mini-trial will be conducted. The clear and convincing burden is quite high which is both good and bad. While it may be difficult to get the evidence in, if it does come in, it may be readily believed by the jury because it already withstood a powerful test. At least the defense attorney can order the transcript and prepare accordingly to battle the witness again.
Judges are always concerned with prejudice so factor 4 should be hammered home as well. Of course, if the other crime evidence is very similar to the crime at issue, prejudice may be difficult to show. However, if the other crime evidence is much more serious, then prejudice will be easier. The defense will argue that the defendant will be convicted on the more serious prior act than the less serious current accusation.
Please keep in mind that other crimes or other bad acts is separate and apart from res gestae. In State v. L.P, 338 N.J. Super. 227 (App. Div.) cert. Denied, 170 N.J. 205 (2001), the Appellate Division explained that res gestate evidence relates directly to the crime that is charged rather than separate bad acts of crimes. Nevertheless, the defense should still attack this evidence from every possible angle.
Any 404(b) evidence that is introduced is devastating because it forces the defense to conduct at least two trials at once. Furthermore, it is likewise difficult to establish a trial theme that can encompass both defenses. While each case has its own unique set of facts and therefore, its own defenses there are a couple of considerations when confronting a case with 404(b) evidence. One is to just switch defenses away from the one that the 404(b) evidence is seeking to undermine. This may lead to exclusion of the evidence or it can be argued that it is irrelvant and the State is seeking to tar and feather the defendant because they are desperate for a conviction. Another option is just ignore the 404(b) evidence and focus 100% of the attack on the crime the defendant is charged with. Of course, this is tough because the purpose of the 404(b) evidence is to undermine the defense itself and ignoring evidence is rarely helpful. However, you can maintain credibility with the jury if you don’t attack evidence that is clearly against you but instead, focus your attack elsewhere.
Yet still another option is to formulate a trial theme that covers both crimes. This can be difficult to do but there are scenarios where this is possible. If the primary accuser knew about the prior bad acts, this can be used to show motive for coaching the victim or the victim could be exploiting this for some reason. If the right facts are present, the defense can be the the two victims are involved in a conspiracy to frame the defendant. This requires either a direct link between the two victims, family members, friends, class mates etc or another link such as the same law enforcement officer DYFS worker investigating the case.
No matter what defense theme is chosen, the defense attorney must take the 404(b) evidence into account and be prepared to deal with it one way or another.