Criminal Law in Bergen and Passaic Counties: Prior Bad Acts Evidence (Part 2)

Recently, I explored the government's ability to use prior bad acts and other crimes  evidence in a criminal prosecution. In a recent case, the Appellate Division addressed the use of this type of evidence in a prosecution  involving  a defendant, who was convicted of, among other things, the aggravated sexual assault of his young daughter. In that case, the court reversed the defendant's conviction because the trial court improperly allowed the use of other crimes evidence.  

Specifically,  the government sought to explain why the victim succumb to the father's sexual advances by having the victim testify that the father told the victim that her sister does "this all the time" and that she was very "cooperative."  The government elicited this statement from the witness on two or three occasions during the trial and on each occasion, the trial judge gave the jury a cautionary instruction, which said in essence that this testimony could not be used to establish that defendant's  disposition to commit the crime subject of the prosecution and that it was offered "merely to establish the content of the events" and to "present a more complete picture to the jury."

The Appellate Division reversed the conviction for two reasons. The first was that the court's instruction was too general in its terms. It concluded that a trial court had a  responsibility to carefully formulate a precise explanation as to why the evidence was permitted and generally why it is usually  prohibited. The second reason was that the sister had provided a prior statement denying that she had any sexual contact with her father and, as a result, the government had failed to establish the other crimes evidence by clear and convincing evidence.