Sullivan, Harry W., Jr.

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Louisiana Law ReviewVolume 36 | Number 4Summer 1976Identity: A Non-Statutory Exception to OtherCrimes EvidenceHarry W. Sullivan Jr.This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationHarry W. Sullivan Jr., Identity: A Non-Statutory Exception to Other Crimes Evidence, 36 La. L. Rev. (1976)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol36/iss4/18NOTESshow, just as in any other nuisance suit, that the defendant'sactivity was unreasonable under the circumstances of the par-ticular case: he must prove a nuisance in fact. However, theregulatory standards should be given great weight by theLouisiana judiciary in determining liability in a nuisancecase, because the weighing process used by the administra-tive agencies in developing these standards is very similar tothe judiciary's nuisance test. Also, the judiciary, in their de-termination of the issues involved in a nuisance case, shouldallow private litigants to take full advantage of the emissiondata and the research data on the damages caused by pollut-ants compiled under the authority of the Clean Air Act.Randall C. SongyIDENTITY: A NON-STATUTORY EXCEPTION TO OTHER CRIMESEVIDENCEEvidence that the accused committed crimes other thanthe one being prosecuted usually is inadmissible1 because ofthe inherent danger that the factfinder will convict the ac-cused of the crime charged because he has a propensity to-ward criminal conduct. However, the general prohibition issubject to recognized exceptions 2 based on the independentrelevancy of other crimes evidence to material questionsother than the defendant's character or propensity towardcrime. 3 Admissibility under these exceptions is predicated ona determination that the probative value of the evidenceoutweighs its inherently prejudicial effect on the accused. 41. C. MCCORMICK, EVIDENCE §§ 184, 187 (Cleary ed. 1972) [hereinaftercited as MCCORMICK]; J. WIGMORE, EVIDENCE §§ 202, 216, 305 (3d ed. 1940)[hereinafter cited as WIGMORE]; see also Stone, The Rule of Exclusion ofSimilar Fact Evidence: America, 51 HARV. L. REV. 988 (1938) [hereinaftercited as Stone]; Comment, Louisiana Evidence: Relevant and Material As-pects, 21 LOYOLA L. REV. 476 (1975).2. MCCORMICK §§ 43, 190, 288; WIGMORE §§ 218, 305, 980. See, e.g., Peoplev. Molineaux, 168 N.Y. 264, 61 N.E. 286 (1901) (listing the major common lawexceptions: knowledge, intent, plan, design, system, motive, emotion, andidentity). See also People v. Johnson, 228 N.Y. 332, 127 N.E. 186 (1920) (im-peachment).3. MCCORMICK §§ 184-85; Comment, Other Crimes Evidence inLouisiana-To Show Knowledge, Intent, System, Etc., In the Case in Chief, 33LA. L. REV. 614 (1973) [hereinafter cited as Other Crimes-I]; cf. FED. R.EVID. 402, 403.4. WIGMORE §§ 216, 416; Trautman, Logical or Legal Relevancy-A1976] 1101i 102 LOUISIANA LAW REVIEW [Vol. 36In Louisiana, statutory exceptions to the general ruleexcluding other crimes evidence 5 include evidence used toimpeach the credibility of witnesses, 6 evidence of other crimescomposing the res gestae,7 and evidence necessary to proveknowledge, intent, or system. 8 The justifications for theseexceptions vary. Evidence of a witness's prior conviction isadmissible to test his credibility;9 the rule applies to defen-dants who take the stand in precisely the same manner thatit applies to other witnesses. 10 Evidence of uncharged crimescomprising part of the res gestae is received to inform thejury fully of the circumstances surrounding the particularcrime charged,' including all acts, whether criminal or not,forming a concomitant part of the criminal episode. Becauseof its high probative value in establishing the defendant'sguilt with respect to the crime charged, evidence of othercriminal acts tending to establish the defendant's knowledge,iritent, or system is allowed despite its inherent prejudice toConflict in Theory, 5 VAND. L. REv. 385 (1952) [hereinafter cited as Traut-man].5. Other Crimes-I at 621.6. LA. R.S. 15:495 (1950), as amended by La. Acts 1952, No. 180 § 1 (au-thorizes use of evidence of prior convictions to impeach a witness's credibil-ity); State v. Prieur, 277 So. 2d 134 (La. 1973) (strictly construing the statu-tory language to exclude all but evidence of convictions); Comment, OtherCrimes Evidence in Louisiana-To Attack the Credibility of the Defendant onCross-Examination, 33 LA. L. REv. 630 (1973) [hereinafter cited as OtherCrimes-II].7. LA. R.S. 15:447-48 (1950) (makes admissible evidence of circumstancesincident to the criminal act as part of the res gestae); e.g., State v. O'Connor,320 So. 2d 188 (La. 1975); State v. Mays, 315 So. 2d 766 (La. 1975); Comment,Excited Utterances and Present Sense Impressions as Exceptions to the Hear-say Rule in Louisiana, 29 LA. L. REV. 661 (1969).8. LA. R.S. 15:445-46 (1950).9. LA. R.S. 15:495 (1950), as amended by La. Acts 1952, No. 180 § 1. Theoriginal intent underlying this provision was to limit the inquiry to the factof conviction. E.g., State v. Perkins, 248 La. 293, 178 So. 2d 255 (1965); but seeState v. Jackson, 307 So. 2d 604 (La. 1975) (details of prior crimes offered toimpeach may be inquired into for the purpose of establishing the true natureof the offense; three Justices dissented and one concurred in the decree); seegenerally Comment, Federal Rules of Evidence: Article VI of the FederalRules of Evidence: Witnesses, 36 LA. L. REV. 99, 116-20 (1975).10. State v. Kelly, 271 So. 2d 870 (La. 1973); McCORMICK § 43 (The defen-dant with a prior record can avoid the effect of this rule by not taking thestand, but he is then denied the opportunity of personally presenting his sideof the story.).11. MCCORMICK § 288; WIGMORE § 218; e.g., State v. O'Connor, 320 So. 2d188 (La. 1975).the accused. 12 To minimize undue prejudice, introduction ofother crimes evidence to establish knowledge, intent, or sys-tem has been prohibited judicially unless the prosecution com-plies with judicially imposed procedural prerequisites. 13The existence of additional exceptions to the ban on othercrimes evidence is well documented at common law14 with atleast one, identity, being judicially recognized in Louisiana.' 5The traditional common law view of identity as an exceptionto the general rule excluding other crimes evidence is of alimited nature. Under this exception, the modus operandi ofthe crime charged and of the "other crime" sought to beintroduced must be identical' 6 and must possess a certainuniqueness,' 7 so that the two crimes are conceived as thehandiwork of one criminal-equivalent in effect to a finger-print or signature. Proof that an accused has committed a"signature" crime identical with the crime under prosecutionis logically relevant to the issue of identity but is admissibleonly when its probative value exceeds its prejudicial effect.' 812. Trautman at 387; Other Crimes-I at 615.13. State v. Prieur, 277 So. 2d 126 (La. 1973). The supreme court estab-lished five procedural rules applicable when other crimes evidence is used toestablish knowledge, intent, or system. These rules require the state to fur-nish notice before trial specifically stating the exception under which theevidence is offered, and to establish that the evidence is neither merelyrepetitive nor a subterfuge for attacking the defendant's character; theyfurther provide that the jury be instructed that the evidence is admitted forlimited purposes. The commitment of the court to these procedural rulesappears firm. State v. Brown, 318 So. 2d 24 (La. 1975); State v. Pearson, 296So. 2d 316 (La. 1974); State v. Ghoram, 290 So. 2d 850 (La. 1974). Neverthelessthe court stated in State v. Banks, 307 So. 2d 594 (La. 1975), that Prieur wasnot to be applied in an overly technical manner and that good faith com-pliance with the guidelines was sufficient.14. MCCORMICK § 190; e.g., People v. Molineaux, 168 N.Y. 264, 61 N.E. 286(1901).15. See State v. Banks, 307 So. 2d 594 (La. 1975); State v. Jordan, 276 So.2d 277 (La. 1973); State v. Wideman, 218 La. 860, 51 So. 2d 96 (1951); State v.Fuselier, 174 La. 319, 140 So. 490 (1932); State v. Wales, 168 La. 322, 122 So. 52(1929).16. MCCORMICK § 190; E. MARJORIBANKS, FOR THE DEFENCE: THE LIFEOF SIR EDWARD MARSHALL HALL at 312 (1929) (discussing the "bridges of thebath" case, R. v. George Joseph Smith, 11 Cr. App. R. 229 (1915)).17. People v. Haston, 69 Cal. 2d 233, 444 P.2d 91 (1968) (admissibilitydepends on several factors considered alone or in combination: time of theoffenses, method of entrance, modus operandi, and the defendant's actualpresence at the scene of the crimes); WIGMORE § 411; cf. Other Crimes-I at618 n.29.18. See notes 4 & 12, supra.1976] NOTES 11.03LOUISIANA LAW REVIEWThe "signature crimes" identity exception has been rec-ognized by Louisiana courts. 19 For example, in State v.Vince,20 the defendant was charged with rape; the LouisianaSupreme Court approved the admission of testimony by twoprior rape victims showing that in each instance the defen-dant had lulled them into a false sense of security with arequest for aid in finding his dog, led them to a clump ofbushes, raped them, and then asked for their jewelry. Appa-rently the court was satisfied that the common modusoperandi in each case was sufficient to make these signaturecrimes, since it sanctioned admission of the separate offensesunder the identical crimes exception. 21Aside from cases involving "signature crimes," the iden-tity exception has been construed by Louisiana courts to havea second meaning. In instances in which alibi, mistaken iden-tity,22 or other defenses which draw into question the iden-tity23 of the perpetrator of the crime charged are raised orlikely to be raised, Louisiana courts have allowed other crimesevidence to be introduced under a second so-called identityexception to the general exclusionary rule.24 One means ofestablishing identity is through the introduction of evidenceof similar crimes committed by the defendant which tend to'19. State v. Vince, 305 So. 2d 916 (La. 1974); State v. Moore, 278 So. 2d 781(La. 1973); State v. Jordan, 276 So. 2d 277 (La. 1973); State v. Modelist, 260 La.945, 257 So. 2d 669 (1972); State v. Wideman, 218 La. 860, 51 So. 2d 96 (1951);see also State v. Dotson, 260 La. 471, 256 So. 2d 594 (1971); State v. Welch, 250La. 719, 198 So. 2d 902 (1967); cf. Crook v. Henderson, 310 F. Supp. 200 (E.D.La. 1970).20. 305 So. 2d 916 (La. 1974).21. Id. at 922. Cf. Other Crimes-I at 618 n.29. See also State v. Moore,278 So. 2d 781 (La. 1973) (factual similarities in separate rapes were notsufficient to justify admission of evidence of one in prosecution for the other).22. State v. Banks, 307 So. 2d 594 (La. 1975) (the state was permitted toshow the familiarity of its witness with the defendant through evidence ofpast illegal drug transactions); State v. Carter, 301 So. 2d 612 (La. 1974)(identity proven through evidence of police officer's familiarity with the de-fendant gained by observing prior burglaries with binoculars).23. But see State v. Moore, 278 So. 2d 781 (La. 1973) (not guilty plea doesnot of itself put identity at issue).24. State v. Banks, 307 So. 2d 594 (La. 1975); State v. Carter, 301 So. 2d612 (La. 1974); State v. Hicks, 301 So. 2d 357 (La. 1974); State v. Kibby, 294 So.2d 196 (La. 1974); State v. Harrison, 291 So. 2d 782 (La. 1974); State v.Reinhardt, 229 La. 673, 86 So. 2d 530 (1956); State v. Hicks, 180 La. 281, 156 So.353 (1934); State v. Fuselier, 174 La. 319, 140 So. 490 (1932); State v. Wales, 168La. 322, 122 So. 52 (1929).1104 [Vol. 36establish that he was the perpetrator of the crime charged.2 5Identity may also be the basis for admission of other crimesevidence when it is offered to establish the familiarity of thestate's witness with the defendant. For example, in State v.Banks,26 the accused, charged with a narcotics violation, at-tacked the ability of a state witness, an undercover policeofficer, to remember and identify him as the perpetrator ofthe crime under prosecution. On the basis of "identity" theLouisiana Supreme Court approved admission 27 of other nar-cotics violations to show the officer's familiarity with the par-ticular accused and to rebut the defense of mistaken iden-tity.28 No requirement of similarity 29 between the offensecharged and the other crime appears to exist, except that theother crime must be relevant to the issue of the defendant'sidentity as the perpetrator of the crime under prosecution.Louisiana courts lack clear statutory authorization fortheir formulations of the identity exception. 30 Specific refer-ence to an identity exception is not found in Louisiana casesuntil 1929, so despite the fact that the exception was alreadystrongly established in the common law jurisprudence, 31 itsomission from the 1928 Louisiana Code of Criminal Procedure,wherein the knowledge, intent, and system exceptions were25. E.g., State v. Hicks, 180 La. 281, 156 So. 353 (1934); State v. Wales, 168La. 322, 122 So. 52 (1929); WIGMORE § 306.26. 307 So. 2d 594 (La. 1975).27. Id. at 599.28. Id. In a hypothetical case, the accused, charged with a narcoticsviolation, attacks the ability of a police undercover officer to remember andidentify him as the perpetrator of the offense. It is suggested that theofficer's testimony as to his familiarity with the accused gained through theftviolations would be admitted under the analysis in State v. Banks, 307 So. 2d594 (La. 1975).29. E.g., State v. Reinhardt, 229 La. 673, 86 So. 2d 530 (1956) (gamblingand theft); State v. Wales, 168 La. 322, 122 So. 52 (1929) (bank robbery andauto theft).30. See State v. Banks, 307 So. 2d 594, 603 (La. 1975) (Barham, J., dissent-ing) (questions the propriety of allowing identity to be used as an exceptionabsent statutory authority). See also State v. Prieur, 277 So. 2d 126, 128 (La.1973) (stating the only exceptions to the other crimes exclusionary rule arethe statutory exceptions).31. The first case in Louisiana recognizing an "identity exception" isState v. Wales, 168 La. 322, 122 So. 52 (1929), although the common law hadrecognized such an exception as early as 1901 in People v. Molineaux, 168N.Y. 264, 61 N.E. 286, 293 (1901). See also Stone at 1026.1976] NOTES 1105LOUISIANA LAW REVIEWfirst codified,3 2 is understandable. Why identity has not beenadded to the Louisiana statutes as a basis for admission ofother crimes evidence is not determinable. Perhaps the appa-rent nexus between the "signature" identity exception andthe system exception 33 was part of the reason for not codify-ing the former. However, this explanation 34 does not justifycontinued exclusion of the identity exception from the statu-tory scheme, since when properly understood, both the iden-tity and system exceptions refer to crimes closely related intime, place, and manner 35 but systematic crimes make up partof a greater scheme, 36 while other crimes bearing on identityare not necessarily related to an overall plan. However, lackof statutory recognition has not diminished the viability ofthe identity exception.3 7 The unavoidable conclusion followsthat the identity exception as applied in Louisiana is an ex-ception of equal stature with knowledge, intent, and systemthough not statutorily approved. Because both the statutoryand the. jurisprudential exceptions to the general exclusion-ary rule admit evidence inherently prejudicial to the ac-cused, 38 evidence of other crimes offered to establish identityshould be subject to the same procedural prerequisites toadmissibility applicable to other crimes evidence offered toshow knowledge, intent, and system.3 9Harry W. Sullivan, Jr.32. State v. Hicks, 180 La. 281, 156 So. 353 (1934); State v. Fuselier, 174La. 319, 140 So. 490 (1932); State v. Wales, 168 La. 322, 122 So. 52 (1929).33. LA. R.S. 15:445, 446; State v. Spencer, 257 La. 670, 243 So. 2d 793 (La.1971); MCCORMICK § 190; WIGMORE § 304.34. MCCORMICK § 190.35. Compare State v. Jordan, 276 So. 2d 277 (La. 1973) (identity) withState v. Spencer, 243 So. 2d 793 (La. 1971) (system).36. WIGMORE § 304; Other Crimes-I at 616.37. State v. Banks, 307 So. 2d 594 (La. 1975); State v. Vince, 305 So. 2d 916(La. 1974).38. MCCORMICK § 190; People v. Molineaux, 168 N.Y. 264, 61 N.E. 286(1901). See also cases cited noted 24, supra.39. See cases in note 13, supra.1106 [Vol. 36

Identity: A Non-Statutory Exception to Other Crimes Evidence

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Identity: A Non-Statutory Exception to Other Crimes Evidence

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