Federal Evidence Review

In bank robbery trial, error in admitting probation officer's testimony that the phone number she used for contacting the defendant was identical to the phone number of a call made to the victim bank shortly before the charged robbery; under FRE 403 and FRE 404(b), the probative value of this evidence in proving the defendant's identity in the bank robbery was substantially outweighed by the danger of unfair prejudice based on the obvious implication that the defendant had previously been convicted and in light of cumulative testimony that the primary user of the phone was the defendant, in United States v. Beck, 625 F.3d __ (7th Cir. Nov. 05, 2010) (Nos. 09-2337, 09-2438)

Considering FRE 403's (and by extension FRE 404(b)'s) balance of probative value of other crimes or act evidence with its danger of creating unfairly prejudicial testimony, the Seventh Circuit recently reminded readers that this includes consideration of the implications of the evidence sought to be admitted.

In the case, the defendant and a colleague were tried for their activities in robbing two separate banks. Immediately before the initial robbery, "someone called [the victim] Bank Mutual branch in Madison, Wisconsin wanting to know when it opened. By itself the phone call wasn't suspicious, but moments later the bank was robbed by three masked men. At that point the call naturally became suspicious, and it was traced to Beck's phone." Beck, 625 F.3d __. This cell phone was not registered to to the defendant. Rather, a witness was called who "testified that while she owned the phone, Beck was the primary user. The government then called Erin Graf, Beck's probation officer, to testify that she used that same number to reach Beck. The defense objected to Graf testifying and over its objection, the judge allowed her to testify and tell the jury that she was a probation officer." Beck, 625 F.3d __.

After conviction, the defendant cited in his appeal the admission of the probation officer's testimony as erroneous. The Seventh Circuit agreed, explaining:

"The Rules of Evidence carefully govern the admission of a defendant's prior convictions. E.g., Fed.R.Evid. 404, 609. This ensures that he is not convicted on anything but the evidence produced at trial. United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir. 1994). And we have repeatedly cautioned courts to consider carefully the introduction of previous convictions. See, e.g., United States v. Taylor, 522 F.3d 731, 732-33 (7th Cir. 2008).

"Here, while there was not an explicit statement that Beck was previously convicted of a crime, most jurors would likely understand that a person on probation has previously been convicted of a crime. And although the probation officer only stated that she was a probation officer and not Beck's probation officer, the distinction does not address the concern courts have with such evidence. No matter how thinly the government would slice the semantic distinctions between 'his probation officer' and 'a probation officer' on appeal, the obvious inference at trial was that she was Beck's probation officer and that he had been previously convicted of a crime.

While evidence of Beck's probation could be admitted to establish his identity, under Rule 404(b), the judge still has to weigh its appropriateness under Rule 403. Taylor, 522 F.3d at 732-33. Here, the probative value of the testimony was minimal given Ms. King's cumulative testimony tying Beck to the phone. And what little probative value there was in having the probation officer testify was substantially outweighed by the danger of unfair prejudice that comes with the jury learning the defendant is a convicted felon. Therefore, we find that the district court erred in allowing the probation officer to testify. Further, even if it was necessary to have the probation officer testify that Beck used that phone, the court should not have allowed her to identify herself as a probation officer."

In erring on admission of the probation officer's testimony, the circuit concluded that this error was harmless and therefore not a basis for reversible error because ultimately, the evidence erroneously admitted was cumulative of other evidence in the record.