Aaron Hernandez’s defense attorneys are once again asking the trial court to prevent the prosecution from raising certain evidence against Hernandez during his murder trial in the Fall River Superior Court. In particular, FOX25 News reports that the motion seeks to exclude eight separate instances of the defendant’s past behavior that have no direct relation to the investigation of the Odin Lloyd murder. but, if admitted, would likely portray Hernandez in a very negative light. Among these “prior bad acts” include a TMZ photograph of Hernandez holding a gun, evidence of firearms and ammo located near Hernandez’s North Attleboro home, and evidence of the Hernandez’s involvement in the 2012 double murder from Suffolk County, a 2013 incident outside a Provide night club, and the Florida shooting of Alexander Bradley in 2013.

Massachusetts Evidence Rules and Trial Practice

Admission of evidence in a Massachusetts trial is regulated by common law – or case law, derived from past decisions of the state’s highest courts. These courts also look to some federal law, as well as the codified federal rules of evidence, for additional guidance. Because Massachusetts does not have a codified set of rules of its own, however, there is often greater room for argument on evidentiary issues in the state’s courts.

An example of an evidentiary issue that frequently arises in criminal proceedings is the question of whether certain evidence of prior bad acts or behavior by the defendant is admissible against the defendant. The general rule in Massachusetts was outlined by the Supreme Judicial Court in Com. v. Trapp, 396 Mass. 202 (1985), and Com. v. Baker, 440 Mass. 519 (2003). (It’s federal equivalent is Federal Rule of Evidence 404(b).) In these, and other, cases, the Court explained that evidence of prior bad acts are not admissible if they are offered merely to show that the defendant misbehaved in the past, and so has a bad character or propensity to commit the crime with which he is currently charged. The reason is that such evidence would cause a jury to improperly assume that the defendant is guilty merely due to his bad reputation or criminal past, rather than weighing fresh evidence before it.

Although evidence of prior bad acts is generally inadmissible to show a defendant’s bad character and propensity to commit crimes, the Massachusetts court did rule that such evidence may be admitted for other purposes. For example, a prosecutor may admit evidence of prior bad acts to show a pattern of operation or “modus operandi” (“M.O.”) – i.e. that the defendant committed a past crime in a certain unique manner that is duplicated in this present offense. Other permissible purposes include using this evidence to prove the defendant’s intent, identity, or motive.

A Look at the Hernandez Motion

In the case of Aaron Hernandez’s murder trial, Hernandez’s motion to exclude demonstrates two concerns on his attorney’s minds: 1) that the prosecutors will misuse the prior bad acts evidence (the TMZ photograph, etc.) to persuade the jury that Hernandez is a violent criminal and so is guilty of murdering Odin Lloyd, or 2) that the jury will be too heavily influenced or “enflamed” by the prior bad acts evidence to be able to rationally assess the weight of all the evidence before it. And while trial judges to generally instruct jurors to limit their consideration of such evidence to the narrow purpose they were admitted to serve, there’s always a significant concern that jurors will not be able to follow the court’s instructions.

While we do not know exactly if or how the prosecutors will seek to offer this evidence during trial, it is likely the case that they will respond to the defense motion by arguing that the evidence shows serves as circumstantial proof of Hernandez’s identity and opportunity. The prosecutor may argue that Hernandez has a history of being violent towards those who he perceives as challenging his sense of superiority. Law enforcement agents from Suffolk county, North Attleboro, Rhode Island, and Florida have alleged to some degree or another that Hernandez’s involvement in the violent crimes in each of their respective districts are linked to some personal conflict or confrontation with Hernandez himself. This goes to prove Hernandez’s identity in Odin murder, since Odin was involved in an intimate relationship with Hernandez’s own girlfriend. The evidence of the discovered weapons, as well as the TMZ photograph, also go to show that Hernandez had the opportunity to commit the murder since he often had firearms in his possession.

The Trial Judge’s Role as Gate-Keeper

Whatever the trial court decides, it will do so after carefully weighing the arguments by both parties. Generally speaking, as long as the evidence does not elicit the inference that a defendant is guilty on a present charge merely because he has committed bad acts in the past, Massachusetts courts are open to admission of such evidence. However, the analysis conducted by the trial judge as the “gate-keeper” of evidence is a bit more complex. That’s primarily because the evidentiary question is rarely as clear cut as the rules suggest. The decision ultimately requires a trial judge to weigh the value of the evidence to satisfy whatever purpose its proponent is offering it for, against the risk of unfair harm to the defendant case by enticing jurors to make an impermissible inference as to the defendant’s character. See Com. v. Yelk, 19 Mass. App. Ct. 465, 471-472 (1985)

Courts are more inclined to allow evidence that is not too remote in time, or that is sufficiently connected to the facts of the present case. Admissible evidence of prior bad acts is always purely circumstantial; that is, it does not speak directly to the defendant’s commission of the present act, but provides support for the inference that the defendant did commit the act. But because of its circumstantial nature, a party’s use of prior bad acts evidence must be limited strictly to the narrow purpose for which it was admitted (i.e. to prove intent, identity, motive). Courts do not approve of a party’s attempts to use this evidence beyond the scope of the circumstantial purpose that it was initially intended to serve.

In my opinion as a Massachusetts criminal defense attorney, we can expect the trial judge in Hernandez’s case to look at each “bad act” carefully, both independently as well as in light of the remaining evidence in this case, to determine which, if any, will be admitted or excluded, and whether the prosecutor will be able to limit the use of this evidence to its specific circumstantial purpose.