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.
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