Challenge the Evidence, Protect Your Freedom
Video Transcribed: Hi, I’m Stuart Ericson, a lawyer in Oklahoma. Today’s question is, in a criminal case, what is a birch notice?
When you’re charged with a crime, let’s say it’s a rape, and you have been convicted of a prior rape. The state of Oklahoma, say, wants to use the prior rape as a means of evidence to convict you of this current rape charge. Now, generally speaking, evidence of past bad acts is inadmissible. Again, if you are charged with rape now, the state generally is limited to the facts of this case. They can’t go, “Yeah, but he’s a bad person. He did this in the past, therefore he’s guilty.” No, your guilt or not guilt should rise and fall on the facts of this case. But of course, as with everything, there are exceptions.
In this case, it’s birch notice. That’s the technical notice that the state of Oklahoma must give to the defense in order to try to bring in a prior bad act, whether it’s a conviction or not. They have to give notice, “Hey, we are going to try to produce evidence of a bad act or a prior conviction from, say, five years ago, and we need to bring this in to prove this case.” Now, once that notice is given, and in discovery you get all of that information, the defense attorney can file a motion and try to fight the birch notice and try to get it denied, to not be used against you. You would have a hearing and the judge would decide whether or not that past bad act gets to come in against you.
Now, the questions that usually come up with that are the motive, intent, identity, and some of those things. It’s generally accepted or put into evidence against you when there’s a modus operandi, your MO. If in this rape case, the facts are very similar; stalking, following somebody, breaking into a house, disguised in this exact same way, and there are just a lot of factual similarities between the current crime and an old bad act of the person. If the same MO is used, the same steps, the same actions, and the same elements, the state would have a better chance of getting that in.
Now, if the two crimes or the bad act and the current crime are too dissimilar, the defense attorney will argue and say, “Hey, these are too dissimilar to try to bring that in.” Because of course, bringing something old in is highly prejudicial to your case. They’re basically trying to say, “Hey, he was bad in the past, therefore he did it.” The burden is on the state to show the linkage between the old and the new, and it’s up to a judge. Of course, if the defense is ruled against, that’s an issue for appeal. But generally, defense attorneys try to keep this out and fight hard to keep this stuff out, because it is so prejudicial.
If this is an issue in any case that you’re aware of, reach out to me, Wagoner criminal defense attorney Stuart Ericson at wagonerlawyer.com.