“Making a Murderer” and the “Legitimate Tendency” Test for Admitting Evidence of Alternate Suspects

In a prior post, I talked about how the Steven Avery case from “Making a Murderer” was one of the cases that led the ABA to amend its Model Rules of Professional Conduct to include a section entitled, “Special Responsibilities of a Prosecutor.” In the comments to that post, a reader asked about the (in)ability of Avery to present evidence of possible alternate suspects. I still haven’t watched “Making a Murderer,” but the question of whether and when a defendant can present evidence of alternate suspects is an important one. In this post, I will look at the Wisconsin test.

In State v. Denny, 357 N.W.2d 12 (Wis.App. 1984), Kent Denny was charged with the first-degree murder of Christopher Mohr based in large part on his own statements.

Part of Kent Denny’s theory of the case was that he was not the perpetrator of the crime and his inculpatory statements were due to his proclivity for storytelling. He claim[ed] he had no motive to murder Mohr but others did. Denny attempted to present evidence by means of an offer of proof to support his theory that others had the motive to kill Mohr. At the same time, Denny sought to prove that he had a reputation as a liar, which would explain his inculpatory statements. The trial court refused to allow Denny to present evidence suggesting that others might have had a motive, ruling it irrelevant. 

After he was convicted, Denny appealed, claiming that the trial court erred by precluding this evidence. In answering this question of first impression in Wisconsin, the Court of Appeals initially cited to People v. Green, a California case which held that

It is settled…that evidence that a third person had a motive to commit the crime with which the defendant is charged is inadmissible if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense….The rule is designed to place reasonable limits on the trial of collateral issues…and to avoid undue prejudice to the People from unsupported jury speculation as to the guilt of other suspects…. (emphasis added).

The Court of Appeals of Wisconsin agreed with this general principle and

disagree[d] only with the Green court’s conclusion that such evidence must be substantial. We perceive this to be too strict a standard for the admissibility of such evidence and conflicts with our supreme court’s pronouncements on the fundamental standards of relevancy.

As a result, the Denny court cited to the United States Supreme Court’s opinion in Alexander v. United States, concluding that

In that case, the United States Supreme Court fashioned the “legitimate tendency” test. In other words, there must be a “legitimate tendency” that the third person could have committed the crime….We believe that to show “legitimate tendency,” a defendant should not be required to establish the guilt of third persons with that degree of certainty requisite to sustain a conviction in order for this type of evidence to be admitted. On the other hand, evidence that simply affords a possible ground of suspicion against another person should not be admissible. Otherwise, a defendant could conceivably produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased—degenerating the proceedings into a trial of collateral issues. The “legitimate tendency” test asks whether the proferred evidence is so remote in time, place or circumstances that a direct connection cannot be made between the third person and the crime.

In other words, a defendant does not need to make a proffer of substantial evidence tying an alternate suspect to the crime charged; he merely needs to make a proffer of evidence creating a “legitimate tendency” of such an association. As the Denny court went on to note,

as long as motive and opportunity have been shown and as long as there is also some evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances, the evidence should be admissible. By illustration, where it is shown that a third person not only had the motive and opportunity to commit the crime but also was placed in such proximity to the crime as to show he may have been the guilty party, the evidence would be admissible. 

Even under this more liberal test, which the Supreme Court of Wisconsin has since adopted, the court found that Denny’s muster didn’t cut the mustard, concluding that

Denny’s offer of proof was deficient. One proposed witness would have testified that Mohr “may have gotten into trouble with…a big drug dealer.” There is neither motive nor opportunity shown here much less a direct connection between the drug dealer and the crime. This same proposed witness would also have testified that Mohr owed one Gary Peterson the sum of $130. Even assuming motive has been established, neither opportunity nor a direct connection to the crime was established. A second proposed witness would have testified that Mohr “may have had an enemy” in Bill Cudahy because Cudahy gave Mohr a shotgun in exchange for a controlled substance. Mohr sold the shotgun, allegedly making Cudahy angry. While motive has been established, no evidence of either opportunity or direct connection to the crime was proffered. We conclude that the trial court did not abuse its discretion in refusing to admit this testimony.

-CM