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In Sex Abuse Case, Eighth Circuit Affirms Exclusion of Prior Sex Abuse Conviction to Avoid Confusion
Mar 23rd, 2014

The headline of this post may be misleading, since it implies a rare ruling excluding a defendant’s prior conviction similar to the charge at issue. In United States v. Patrick Brown Thunder, issued on March 12, 2014 (published), however, at issue was not a prior conviction of the defendant, but a prior conviction of someone the defendant claimed was the true perpetrator. The Eighth Circuit held that the district court did not abuse its discretion by excluding evidence of this second man’s sex abuse conviction as “the record is devoid of evidence that [this second man] spent any time alone with [the victim]” thus “completely undermin[ing] the probative value of his prior conviction” and potentially “confus[ing] the jury by creating the impression that someone without access to the victim may have committed the crime.” In other words, the Court needed some threshold plausibility to the defense theory that the crime was committed by this other individual. One could imagine scenarios in an especially weak case where this case is a precedent to be used by the defendant challenging the admission of one of his own highly prejudicial prior similar convictions.

In a footnote, the Court highlighted the little used Federal Rule of Evidence 412 as an alternative bar to admission of this evidence. This rule provides that when a party seeks to offer evidence that “someone other than the defendant was the source of semen, injury, or other physical evidence,” the party is required to file a motion describing the proposed evidence at least fourteen days before trial and to notify the victim of the proposed evidence.” While typically, the defense is not obligated to reveal its defense strategy in advance (the defendant is, after all, presumed innocent beyond a reasonable doubt), this rule joins alibi evidence and the insanity defense, among others, as one of the notable exceptions.



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JaneAnne Murray is a criminal defense lawyer in Minneapolis.

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