Daniels v. United States

SCHWELB, Associate Judge,

concurring in the judgment:

We have held that in order to introduce evidence that a defendant committed an uncharged offense, the prosecution must “show by clear and convincing evidence that the other crime occurred and that the defendant is connected to it.” Groves v. United States, 564 A.2d 372, 374 (D.C.1989), modified 574 A.2d 265 (D.C.1990) (per curiam). This showing, according to the decision on which the doctrine is based, must be made “before allowing the jury to hear the details of the [other crime].” United States v. Bussey, 139 U.S.App.D.C. 268 , 273, 432 F.2d 1330, 1335 (1970) (emphasis added).

A proffer is not evidence at all, In re R.E.G., 602 A.2d 146, 148 (D.C.1992); Jackson v. United States, 589 A.2d 1270, 1271 (D.C.1991) (per curiam), and thus cannot constitute “clear and convincing” evidence, or even murky and unpersuasive evidence. Accordingly, this court having elected to impose this requirement of “clear and convincing evidence,” I am at a loss to understand how we can allow such a requirement to be satisfied by an attorney’s proffer. Aside from the fact that a proffer by a lawyer is not evidence by a witness, 1 the judge cannot tell whether proposed testimony is “clear” or “convincing” — adjectives which characterize the quality of the evidence — without evaluating the credibility of the individual who is to provide it.

I note that the Supreme Court held unanimously in Huddleston v. United States, 485 U.S. 681 , 108 S.Ct. 1496 , 99 L.Ed.2d 771 (1988), construing Fed.R.Evid. § 404(b), that the government need not even demonstrate to the judge by a preponderance of the evidence that the defendant committed the uncharged offense. “Such evidence should be admitted if there is sufficient evidence to support a finding by the jury [by a preponderance] that the defendant committed the similar act.” Id. at 685, 108 S.Ct. at 1499 . I think it would make sense to conform our jurisprudence to Huddle-ston; a proposition convincing to all nine of the Supreme Court justices surely merits our consideration. But see Groves, supra, 564 A.2d at 375 n. 5.

*350 While “clear and convincing” continues (at least in theory) to reign supreme, however, I think we ought to eschew an analysis which, by resort to judicial alchemy, converts non-evidence into evidence. People should not be deprived of their freedom on the pretense that something is so when it demonstrably is not so. If we mean that the prosecution must make a proffer which, if true, will be convincing to the judge, we should cast the rule in those terms, and not proclaim the altogether different principle that proof by clear and convincing evidence is required. Our rhetoric should coincide with reality; if the ostensible requirement of clear and convincing evidence is a misnomer, we should say so, loud and clear. If it is not a misnomer, then we should either unambiguously abandon it 2 or follow it according to its stated terms and hold that a prosecutor’s proffer does not make the grade.

Nevertheless, I agree that the convictions must be affirmed. Assuming, Groves to the contrary notwithstanding, that evidence means evidence, and that the trial judge should have conducted a voir dire examination of the “other crimes” evidence outside the presence of the jury, it is obvious from what occurred thereafter, and specifically from the judge’s refusal to grant a mistrial, that he would have admitted the contested evidence even if such an evidentiary hearing had been held. Any error was therefore harmless.

. As every juror is told in every criminal jury trial in this jurisdiction, ”[s]tatements and arguments of counsel are not evidence.” District of Columbia Criminal Jury Instruction § 2.05, at 41 (3d ed. 1978).

. Such abandonment might, however, require us to go en banc. M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971).