The “Wet Bandits” in “Home Alone” & Propensity Character Evidence vs. Signature Crime/M.O. Evidence

In last night’s episode of “Undisclosed,” I discussed Joe Pesci and Daniel Stern in “Home Alone” as an example of a “signature” crime, in which the criminals leave behind some type of calling card at the crime scene. In “Home Alone,” characters played by Pesci and Stern (Harry and Marv) would commit burglaries and then wad up towels in kitchen sink and leave the water running to flood the houses of their victims. This is why I mistakenly referred to them as the “kitchen sink burglars” when they actually (as many listeners have correctly pointed out) referred to themselves as the “wet bandits.” 

It actually turns out that a few lawyers/judges have used a similar analogy to describe the dichotomy between inadmissible propensity character evidence and admissible signature crime/modus operandi evidence.

In United States v. Burwell, 642 F.3d 1062, 1067 (D.C. Cir. 2011), the United States Court of Appeals for the District of Columbia noted that

Although not listed in Rule 404(b)’s nonexclusive list of proper purposes, modus operandi evidence is normally admitted pursuant to the identity exception….But evidence of modus operandi must be unique; “the Government must establish not only that the extrinsic act bears some peculiar or striking similarity to the charged crimes, but also that it is the defendant’s trademark, so unusual and distinctive as to be like a signature.”[FN4]

FN4. Think, for example, of the 1990 Macaulay Culkin movie Home Alone in which the “Wet Bandits” left the faucets running in each house they burgled. HOME ALONE (20th Century Fox 1990).

Similarly, in his brief in State v. Johnson, 2016 WL 3036866 (Wis.App. II Dist. 2016), the defendant argued that

the State must show the other acts must have such a concurrence of common features and so many points of similarity with the crime charged that it can be reasonably be said that the other acts and the presented act constitute the imprint of the defendant. A great example is the movie Home Alone in which the “wet bandits” always stole items from homes and then left the water running and flooded the basements. Here, the defendant was charged for armed robbery.

And, in a brief in United States v. Cabello, 2012 WL 12135640 (D.Or. 2012), the defendant claimed that

Use of Rule 404(b) to show modus operandi also falls under the discretion of the trial judge. Evidence of modus operandi must be unique; “the Government must establish not only that the extrinsic act bears some peculiar or striking similarity to the charged crimes, but also that it is the defendant’s trademark, so unusual and distinctive as to be like a signature.”… “Think, for example, of the 1990 Macaulay Culkin movie Home Alone in which the “Wet Bandits” left the faucets running in each house they burgled. Home Alone (20th Century Fox 1990).

In other words, the prosecution cannot present of other burglaries (allegedly) committed by the defendant to prove “Once a burglar, always a burglar.” That’s impermissible character evidence. But, if the prosecution can show that a signature/calling card was left at a crime scene or that a series of burglaries was so unique/similar that the same person (and no one else) must have committed them, evidence of these other burglaries would be admissible to prove signature crime/M.O.

-CM