reciting the rule that “[a]n extrajudicial declaration not under oath, by the declarant, that he, and not the defendant on trial, committed the crime is inadmissible as hearsay, though the declaration is against the declarant’s penal interest,” but allowing an exception “where there are sufficient indicia of trustworthiness of such extrajudicial statements”
How later courts described this case
- reciting the rule that “[a]n extrajudicial declaration not under oath, by the declarant, that he, and not the defendant on trial, committed the crime is inadmissible as hearsay, though the declaration is against the declarant’s penal interest,” but allowing an exception “where there are sufficient indicia of trustworthiness of such extrajudicial statements”
- discussing the historical treatment of bloodhound evidence in Illinois and holding that “[w]e continue to adhere to the principle that bloodhound evidence is inadmissible to establish any factual proposition in a criminal proceeding in Illinois”
- noting that in a “case dealing with other-crimes evidence offered by a defendant, such evidence is admitted where the evidence contains ‘significant probative value’ to the defense without any reference to the element of prejudice”
- holding that dog-tracking evidence is inadmissible to establish any factual proposition in a criminal proceeding due to the dangers of unfair prejudice
Written by the judges who cited it.
The opinion
JUSTICE NICKELS, concurring:
I agree that the trial court erred in excluding evidence concerning Dugan’s other crimes and I therefore join in the judgment granting Cruz a new trial. However, I write separately because I believe the plurality mechanically applies the evidentiary rules regarding other-crimes evidence and thereby places unnecessary obstacles in front of the truth-seeking function of the trial. In particular, the plurality requires the same degree of similarity between the charged crime and other-crimes evidence regardless of whether the State or the defendant proffers the evidence. In my opinion, once a third party’s confession is admitted as substantive evidence under Chambers, admission of that person’s other crimes should not focus solely on similarity, but on concerns of relevance, jury confusion, and undue delay in the trial.
The rules of evidence are designed to secure fairness, prevent prejudice, and foster the ascertainment of truth. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 102 (5th ed. 1990).) Evidence of other crimes is inadmissible for the purpose of showing a propensity on the part of the defendant to commit crimes. (People v. Lampkin (1983), 98 Ill. 2d 418 .) The justification for the rule is defined in terms of prejudice to the defendant. The danger is that other-crimes evidence "over-persuades the jury, which might convict the defendant only because it feels he or she is a bad person deserving punishment.” People v. Lindgren (1980), 79 Ill. 2d 129, 137 .
The plurality concedes that in cases where a defendant seeks to introduce other-crimes evidence to exculpate himself there is no need to balance the probative value of the evidence against any prejudicial effect. (162 Ill. 2d at 350.) However, the plurality still requires the same degree of similarity between the other crimes and the charged crime as if this were a case where the danger of prejudice to the defendant must be overcome. First, the plurality concludes that the Ackerman murder was sufficiently similar to the Nicarico murder to justify admission under a modus operandi theory. The plurality requires the same rigid similarity that would be required if the State were attempting to prove the existence of a common offender based only on the similarity of the crime. Second, the plurality concludes that the evidence of Dugan’s other crimes was sufficiently similar to the charged crime to corroborate his statements regarding the Nicarico murder.
In contrast, Justice McMorrow and Justice Heiple, joined by Chief Justice Bilandic, argue in dissent that the strict factual similarity requirements for other-crimes evidence were not satisfied in this case. These Justices would exclude the evidence of Dugan’s other crimes on this basis.
I do not believe that factual similarity between the charged crime and the other crimes is the appropriate focus for determining whether to admit other-crimes evidence of a nondefendant. I agree with the plurality that where a defendant seeks to introduce evidence of other crimes to exculpate himself, there is no need to balance the probative value of the evidence against any prejudicial effect. (162 Ill. 2d at 350.) However, the corollary to that proposition is that the other-crimes evidence must be admissible where it has any probative value that is not outweighed by some other consideration, such as jury confusion or delay. I share the view regarding similarity expressed by the Supreme Court of New Jersey in State v. Garfole (1978), 76 N.J. 445, 452-53 , 388 A.2d 587 , 591:
"[A] lower standard of degree of similarity of offenses may justly be required of a defendant using other-crimes evidence defensively than is exacted from the State when such evidence is used incriminitorily [sic]. As indicated above, other-crimes evidence submitted by the prosecution has the distinct capacity of prejudicing the accused. Even instructions by the trial judge may not satisfactorily insulate the defendant from the hazard of the jury using such evidence improperly to find him guilty of the offense charged merely because they believe he has committed a similar offense before. Therefore, a fairly rigid standard of similarity may be required of the State if its effort is to establish the existence of a common offender by the mere similarity of the offenses. [Citations.] But when the defendant is offering that kind of proof exculpatorily, prejudice is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility, since ordinarily, and subject to the rules of competency, an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made.” (Emphasis added.)
Thus, absent the danger of prejudice to a defendant, the only remaining considerations are whether the evidence of other crimes is relevant and whether the probative value of this relevant evidence is outweighed by a danger of jury confusion or undue delay of the trial. (See also United States v. Aboumoussallem (2d Cir. 1984), 726 F.2d 906, 912 (applying same analysis for other-crimes evidence proffered by a defendant under Federal Rule 404(b)).) Similarity between the charged crime and the other crimes becomes a consideration only to the extent that it is one means of finding the other-crimes evidence relevant.
The plurality refuses to relax the similarity requirement for admission of other-crimes evidence where the evidence is proffered by a defendant. The plurality supports this decision based on this court’s decision in People v. Tate (1981), 87 Ill. 2d 134 . However, a close reading of Tate and the cases on which it relied shows that relevance and not factual similarity is the appropriate inquiry.
In Tate, the defendant was charged with various offenses that arose from his attempt to steal meat from a convenience store. The defendant’s theory was that another man committed the crime. Defendant’s theory was based on a subsequent similar crime committed by that man and an alleged confession by him. However, unlike Dugan’s confession, the confession in Tate was found not to be sufficiently corroborated under the Chambers standard and was not admitted as substantive evidence. (Tate, 87 Ill. 2d at 144 .) The defendant attempted to admit the other-crimes evidence of the third party under a theory of modus operandi.
This court found that the other-crimes evidence was inadmissible because there was no "substantial and meaningful link” between the other-crimes evidence and the charged crime. (Tate, 87 Ill. 2d at 143 .) This standard is a relevance standard defined in terms of the strength of the connection between the crimes, of which similarity is but one factor. In Tate, there was no other link between the charged crime and the other-crimes evidence of the third party besides their similarity, as the alleged confession was found unreliable. In such a case, there must be a high degree of similarity before the other-crimes evidence becomes relevant. Obviously, where a defendant attempts to raise a reasonable doubt as to his guilt based on no more than the occurrence of a similar crime committed by someone else, a high degree of similarity is necessary before the other crime could be considered relevant.
Further support for the position that similarity is but one factor in determining whether there is a substantial and meaningful link between the other-crimes evidence and the charged crime is found in the case from which Tate borrowed that standard. This court in Tate quoted at length from Commonwealth v. Keizer (1979), 377 Mass. 264 , 385 N.E.2d 1001 , in which a defendant was accused of participating in a robbery with two other persons. In Keizer the defendant attempted to prove he was not one of the three who committed the robbery by introducing evidence that the person thought to be his accomplice committed a subsequent robbery with two other people. The trial court excluded evidence of the subsequent crime because the "facts were not closely related to the facts of the case against the defendant.” Keizer, 377 Mass. at 266 , 385 N.E.2d at 1003 .
The Massachusetts Supreme Court reversed. The court recognized that some of the similarities in the crimes were common to many robberies in the Boston area. (Keizer, 377 Mass, at 267, 385 N.E.2d at 1004 .) The court also noted that there were discrepancies in the descriptions of the assailants in the two robberies. (Keizer, 377 Mass, at 268, 385 N.E.2d at 1004 .) However, the court reversed because the participation of one of the defendant’s alleged accomplices in a second robbery with two other people established the necessary link between the two crimes. (Keizer, 377 Mass, at 268, 385 N.E.2d at 1004 .) As defendant did not participate in the second crime, this evidence was relevant to his participation in the first crime and should have been admitted despite the lack of any distinguishing characteristics of the two crimes.
Thus, there was a substantial and meaningful link found in Keizer between the other-crimes evidence and the charged crime where factual similarity was but one factor. As in Keizer, there are significant factual similarities in the present case between the charged crime and the other-crimes evidence which are pointed out by the plurality. However, I agree with the dissenters that there are no distinctive common features that would earmark both crimes as the handiwork of the same criminal. Such a finding is not fatal to whether a sufficient link exists. In Keizer there were also no distinctive common features between the charged crime and the other-crimes evidence. (Keizer, 377 Mass, at 268, 385 N.E.2d at 1004 .) The appropriate analysis is to apply factual similarity as one factor in determining whether a sufficient link exists between the charged crime and the other-crimes evidence.
Applying these considerations, evidence of Dugan’s other crimes should be admitted if relevant. Evidence of Dugan’s other crimes is relevant if there is a sufficient link between that evidence and the Nicarico murder such that the defendant’s guilt is made more or less probable. The degree of factual similarity between the charged crime and other-crimes evidence is one factor to consider in determining whether a sufficient link exists.
Dugan’s confession in and of itself provides the necessary link between Dugan’s other crimes and the Nicarico murder. The facts of Dugan’s other crimes are relevant as corroboration of his confession to the Nicarico murder. The facts of Dugan’s other crimes are relevant because, if he was telling the truth in regard to those other crimes, it is more likely he is telling the truth regarding the Nicarico murder.
The similarity between certain elements of the Nicarico murder and other crimes Dugan has admitted committing bolsters the connection between the crimes. In both the Nicarico and Ackerman murders, the victims were young Caucasian girls abducted during daylight hours. Both victims’ hands were likely tied and they were anally raped. The other crimes shared some similarities with the Nicarico murder, including sexual assaults taking place in the back seat of a car, one involving a tire iron, and another blows to the head. While these similarities are all insufficient to show modus operandi, the similarities are factors along with the confession in finding a sufficient connection between Dugan’s other crimes and the Nicarico murder.
In addition, the evidence of Dugan’s other crimes is also relevant to show he is capable of the heinous nature of the Nicarico murder. There is no prejudice to Dugan, as he is not on trial. Also, the propensity rule simply has no application where there is a confession of a third party, as the danger of the inappropriate inference is eliminated by the act of confessing to the crime. Moreover, there is no prejudice to the defendant in the admission of other-crimes evidence of another person who confessed to the crime for which defendant is charged. As the plurality notes, other-crimes evidence is " 'objectionable ''not because it has no appreciable probative value, but because it has too much.” ’ ” (162 Ill. 2d at 348, quoting People v. Romero (1977), 66 Ill. 2d 325, 330 , quoting People v. Lehman (1955), 5 Ill. 2d 337, 342 .) Where there is no danger of prejudice, I see no reason to deny the trier of fact such probative and relevant evidence.
The evidentiary rules regarding other-crimes evidence were born out of the need to protect the innocent from being convicted on the basis of past crimes. I cannot agree with the mechanical application of these rules to the present case. Once a confession is found sufficiently corroborated to be admitted as substantive evidence, I would find the evidence concerning the confessor’s other crimes admissible on the basis of relevance alone.