All In A Name: Identity Evidence And Unfair Prejudice

 Malcolm X, 12 March 1964, Library of Congress

In felon in possession of a firearm and conspiracy to make false statements to a firearms dealer, admitting evidence about the defendant's Muslim name, which allegedly was similar to the name of a famous black Muslim activist, as well as the defendant's criminal records allegedly part of a co-defendant's "dossier," because the risk of unfair prejudice under FRE 403 was "slight" compared with its probative value in proving identity of defendant as involved in the charged crime, in United States v. Turner, __ F.3d __ (3d Cir. April 19, 2012) (No. 10–4573)

How does the FRE treat evidence of a highly suggestive name? It depends on the purpose for which the name is introduced into evidence and the connotations arising from the name. A recent Third Circuit case provided a brief discussion of how this balance works under FRE 403, in which the probative value of the name evidence is substantially outweighed by unfair prejudice from the reference to the name. The Circuit's brief discussion suggests the "know it when you see it" elements of striking the FRE 403 balance.

In the case, defendant Turner involvement in firearms came to light after an Alcohol, Tobacco, and Firearms agent began "partonizing Kazoo's Barber Shop School of Hard Knocks in downtown Philadelphia." There, he found his barber Lawson, who "called himself 'Mikail'" was always carrying a gun and that the side-line of the barber shop was the "sale of stolen and counterfeit items." An investigation of the location was initiated and it soon became clear that Lawson, who had entered into a plea agreement, could not have obtained the weapon legally, as he was a felon. In the effort to identify who provided the charged weapon, the barber explained that "he bought the rifle from 'Jabriel,' who turned out to be defendant Turner.

In defendant Turner's trial, the defense attacked the credibility of Lawson, suggesting he "spill[ed] [his] guts ... to get a deal" in exchange for his plea. The defense apparently questioned just "how well Lawson knew Turner" to be able to identify him as involved in the gun transfer. To resolve this identity issue, the prosecution sought to:

“to ask [Lawson] how he kn[ew] what [Turner's] real name was as opposed to his Muslim name.” The Court allowed the Government to do so but instructed the Government to use “pointed questions” and to avoid using the word “Muslim.” When questioning resumed, Lawson stated that he met Turner through a religious organization in the 1980's, when he knew him both by his “birth name” and as “Jimmy X Turner.” Lawson used this name in a “dossier,” which was a “profile on each member of the [religious] organization[,] their name, their home address, their educational background, their criminal records, and so on and so forth.” Finally, Lawson testified that ... he had forgotten Turner's real name and only referred to him by the “name that's given to [him] in the organization” because “[n]obody uses their Christian name on the streets.” Lawson confirmed that his own “religious name” was “Mikail.”
Turner, __ F.3d at __.


The jury convicted the defendant and in his appeal, the defendant contended that the trial judge should not have allowed cooperating co-defendant Lawson refer to the defendant, "'Jimmy X Turner' and the 'criminal record[s]' in his 'dossier.'” Third Circuit devoted little time to considering this argument on appeal and questioned the defendant's claim that Lawson's reference to the defendant as:

“Jimmy X Turner” had no probative value but “might be understood by at least some jurors as a reference to a Muslim associated with followers of the late ‘Malcom X,’ who some might think of as an anti-establishment radical.” He also contends that Lawson's “dossier” reference suggested Turner was in “a religious organization where it was standard to have a criminal record.”

We find no error, let alone plain error, in the District Court's admission of this evidence. Federal Rule of Evidence 403 permits the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of ... unfair prejudice.” The risk of prejudice from this evidence was slight. The mere addition of “X” to Turner's name was unlikely to stoke the jury's passions. And although Lawson testified that he kept “dossiers” with information on “each member of the organization[,] their name, their home address, their educational background, their criminal records, and so on,” he did not testify that Turner had a criminal record. Therefore, we reject Turner's second argument.
Turner, __ F.3d at __.

The result in Turner suggests that the Third Circuit recognized that the nature of references to a defendant at trial have a potential for unfair prejudice. However, it was also clear that evidence of the name the defendant's associates gave to the defendant were relevant to the question of the defendant's identity as part of the charged firearm conspiracy. Its value in terms of showing the defendant's identity obviously was not substantially outweighed by "unlikely" fears, passions or mis-impressions that defendant's name might suggest to some.

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Photo Description: Malcolm X, 12 March 1964, Library of Congress (New York World-Telegram & Sun Collection). at: http://hdl.loc.gov/loc.pnp/cph.3c15058

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