In my evidence class last semester, we used George Fisher’s popular casebook, which began our study of evidence with a walkthrough of evidentiary “basics”: relevance (FRE 401) and unduly prejudicial evidence (FRE 403). As the course progressed, these concepts tended to fade into the background – often playing the part of backup arguments in the event that a hearsay or character evidence objection seemed too simple or ill-founded.
While this treatment of relevance and undue prejudice was probably necessary given the time constraints of the class, this quick treatment may cause classes to overlook the rich doctrine of these rules. Despite the relatively simple text of bans on unduly prejudicial evidence, these rules are the vehicle for an intricate web of traditional and judge-made doctrine regarding the admission of specific types of evidence.
Take, for example, profile evidence.
Testimony is profile evidence when it seeks to infer that a defendant committed a crime because that defendant fit the profile of a guilty person. This evidence appears in a variety of contexts, most infamously in cases involving drug couriers. In a typical case of profile evidence, a police expert is called to testify about the features of a “typical” criminal. For instance, a typical drug courier would purchase a one-way plane ticket, would pack lightly, would walk quickly, and would meet a contact person at his/her destination. The expert would then note how the defendant fit all of these features.
Or, to borrow an example from Boston Legal, consider the profile of the typical person looking to solicit sex for a fee in a restroom. In “Oral Contracts” (Episode 8, Season 4), William Shatner’s character, Denny Crane, finds himself in an uncomfortable situation when he is arrested for this very crime:
Officer Brian Whistler: He did all the known signals for solicitation; in fact, he was quite methodical about it.
Denny Crane: He’s full of crap.
Alan Shore: Denny.
Denny Crane: Well, so was I, but I was constipated.
Alan Shore just shakes his head, trying to listen to both of them at once.
Alan Shore: What kn—known signals?
Officer Brian Whistler: Well, first he came in; looked under the stall doors. Then, he entered a stall next to an occupied one. He slid his briefcase to the front, making his feet visible to the adjacent occupant.
Denny Crane: Oh, puh-lease. I—
Alan Shore finds this all quite amusing. He turns to Denny Crane to quietly shush him.
Officer Brian Whistler: He then moved his foot over, then he began to hum quietly. Then he tapped his foot four times, up and down.
Denny Crane: Look, now. First, we—
Alan Shore: (hand on Denny Crane’s chest) Denny.
Officer Brian Whistler: Sir, there’s really no point in denying this.
Alan Shore: Unless you consider “innocence” a point. Would that be a point worth considering?
Officer Brian Whistler: These are well-known solicitation signals.
Alan Shore scoffs, mouthing “well known.”
Officer Brian Whistler: You didn’t even go to the bathroom, by the way, did you?
Denny Crane: (now exasperated) Because I was constipated! Did we not go over this?
Would these “well known” solicitation signals be admissible to show that Denny Crane intended to solicit sex? The prosecution may have a difficult time under Massachusetts law, which generally holds that evidence of criminal profiles is not admissible to establish that the defendant was a criminal because the profiles may include innocent parties as well as guilty parties. See Commonwealth v. Day, 569 N.E.2d 397, 399-400 (Mass. 1991). On the other hand, the prosecution may argue that the officer’s testimony was not so much profile evidence as it was the description of the modus operandi of a person soliciting sex – a practice that would likely be beyond the ken of average jurors. See Commonwealth v. Dennis, 604 N.E.2d 48, 51 (Mass. App. Ct. 1992).
The judge in this case may see arguments both ways when it comes to the admissibility of the officer’s description of typical practices used in solicitation scenarios. Because the practices the officer describes are so likely to include innocent conduct as well as criminal conduct, Denny Crane would probably have the better argument. Also, as Alan Shore later points out, Denny Crane’s conduct could be consistent with the behavior of somebody asking for sex without a fee – behavior that would be legal (though, in Denny Crane’s opinion, still objectionable).
In the end, Alan Shore emphasizes the ridiculous nature of the profile evidence in his closing argument. The realities of evidence law, however, would probably have prevented the prosecution from ever presenting a case in the first place.