Prior to Trial Defense Must Force Prosecutor to State if it Intends to Introduce Evidence of Uncharged Criminal Conduct, & Disclose to Defense any Evidence to Support Alleged Criminal Conduct

All to often at the time of trial the prosecutor will attempt to introduce what is commonly known in New Jersey criminal practice as “other crime evidence”, or Rule 404(b) evidence against the defendant.  This typically is evidence of other crimes or wrongs allegedly committed by the defendant.  This evidence is not admitted to prove that the defendant had a propensity to commit the instant offense which he is on trial for, but rather to prove another relevant issue of the case, such as to prove motive, opportunity, intent, preparation, plan, knowledge or absence of mistake or accident, when such evidence is relevant to a material issue at trial. 

This evidence is probably the most damaging type of evidence offered against a criminal defendant because the jury hears that the defendant had committed another crime or wrong before, and often it is difficult if not impossible for the jury not to use this evidence improperly.

Therefore, it is essential in every criminal case that defense counsel in his initial discovery request demand that the prosecutor state whether it intends to introduce evidence of uncharged criminal conduct, when the State presents its case, or during the State’s cross-examination of the defendant, if he or she testifies.

Further, the letter should demand that if the State intends to proffer this type of evidence that it immediately disclose the specific wrongful acts, and that the State furnish to the defense during discovery any and all evidence to support such evidence, which includes, but not limited to any and all evidence that is relevant to such uncharged criminal conduct.

Lastly, defense counsel should make it clear that in the event that this information is not disclosed to the defense during discovery that the defense will object to the State’s attempt to introduce such evidence at the time of trial, because the defense would clearly be prejudiced by such a delay in disclosure.

On June 6, 2011, Mr. Dominique Strauss-Kahn appeared for his arraignment in New York Supreme Court at the criminal courts building in Manhattan to enter his plea of not guilty.  In connection with that plea the first thing that his defense attorneys (Taylor and Brafman) did by way of discovery to the prosecutor, was to demand from the prosecutor that it disclose to the defense any uncharged criminal conduct which might include allegations of other victims that Mr. Strauss-Kahn engaged in other sexual crimes or wrongs with these women. 

Vincent J. Sanzone, Jr., Esq.
YourCivilRights@gmail.com

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