While shopping at a neighborhood deli with friends Defendant had an an argument with Michael Cleland, following which Cleland was shot. Cleland survived and identified Defendant as the shooter. Defendant denied the allegation and stated that he was running from the store when someone else shot Cleland. Defendant was charged with attempted second-degree murder.

During trial People produced a ballistics report that linked the bullets from the shooting to a gun used by a man named Booker in a subsequent and unrelated crime. Defendant sought to introduce this report as exculpatory evidence to support his defense that someone else, namely Booker, had shot Cleland. The trial court ruled that the evidence could only be admitted if Defendant could place Booker at the scene of the crime. Testimony from both Cleland and a detective indicated that Booker was present at the scene, but the trial court refused to admit the ballistics report, stating that the testimony was not "evidence-in-chief" placing Booker at the scene of the crime. The jury convicted. On appeal, the Appellate Division affirmed, agreeing that Defendant had not established the necessary "clear link" between Booker and the crime. The New York Court of Appeals reversed and ordered that a new trial be held using the Court's clarified standard of admissibility for third-party culpability evidence.

Whether the "clear link" test best expresses the standard for admitting into court exculpatory evidence relating to a third party's culpability.

No. Evidence that another person committed the charged crime is admissible when it's probative value outweighs the risk of delay, undue prejudice, or jury confusion. Courts should not use the "clear link" test because it may imply a different standard.

State of the Law Before Primo

In 1881, the New York Court of Appeals stated that in order for a court to admit exculpatory evidence indicating a third party's culpability, the court must first determine that a connection exists between the evidence and the circumstances of the case, which clearly indicates that the other person committed the crime. People v. Greenfield, 85 N.Y. 75 (N.Y. 1881). The Court has also, on several recent occasions, reasserted the general rule that a trial court should not exclude relevant evidence if it determines that the evidence's probative value outweighs the risk of delay, undue prejudice, or jury confusion. People v. Davis, 43 N.Y.2d 17, 23 (N.Y. 1977); People v. Scarola, 71 N.Y.2d 767 (N.Y. 1988).

The New York Supreme Court (Second Department), in 1985, was the first New York court to refer to the standard set forth in Greenfield as the "clear link" standard. People v. Aulet, 111 A.D.2d 822 (N.Y. App. Div. 1985). The Aulet court held that in order for a defendant to introduce evidence of another person's guilt, the defendant must do more than raise a mere suspicion that a different person committed the crime. Rather, "there must be a clear link establishing that it was another [who] committed the crime." People v. Aulet, 111 A.D.2d at 825. The Aulet court also reiterated the traditional standards set forth in Davis: that courts should exclude third-party culpability evidence if its evidentiary value is outweighed by other balancing factors.

Since Aulet, most New York courts have used the "clear link" standard to resolve admissibility challenges of third-party culpability evidence, but they have generally not discussed the Davis balancing factors. See People v. Pack, 189 A.D.2d 787, 787 (N.Y. App. Div. 1992); People v. Zanfordino, 157 A.D.2d 682, 683 (N.Y. App. Div. 1990); People v. Brown, 133 A.D.2d 773, 774 (N.Y. App. Div. 1987); People v. Austin 112 A.D.2d 242, 242 (N.Y. App. Div. 1985). The "clear link" phrase has replaced the traditional language of Davis's balancing test.

Effect of Primo on Current Law

As the test's name implies, a "clear link," or direct connection, between the third-party culpability evidence and the charged crime is often viewed by courts as being of sufficient probative value to be admissible. Therefore, to the extent that the "clear link" test is employed in the same manner as the conventional evidentiary balancing test, no error is committed. In the event that a higher evidentiary standard is utilized, however, the test is incorrectly employed.

In its opinion, the Court noted that the general balancing analysis governing the admissibility of all evidence may not rest on mere suspicion. Proper administration of the test requires the defense to make an offer of proof outside the presence of the jury tending to show evidence of third-party culpability. In the instant case, the Court found that the ballistics report satisfied such evidentiary requirements and effectively linked a third person, Booker, to the crime charged. Because the third person was indeed at the scene of the crime, the report's probative value outweighed the possibility of prejudicial delay. Hence, the trial court erred in excluding such evidence.

The effect of this decision is more limited than it first appears, as the Court did not change the evidentiary standard for admissibility of evidence relating to a third party's culpability. The Court simply did away with terminology that may have implied a higher standard. The Court's decision clarifies that third-party culpability evidence is to be treated like all other evidence, with admissibility contingent upon counterbalancing that yields more probative benefit than prejudicial delay.

Survey of the Law in Other Jurisdictions

Minnesota applies a more exacting approach, requiring third-party culpability evidence to pass a three-prong test before it can be admitted. The defendant "must show: (1) clear and convincing evidence that the third-party participated in the [crime]; (2) that the [actions of the third-party] are relevant and material to the defendant's case; and (3) that the probative value of the [third party culpability evidence] outweighs its potential for unfair prejudice." Minnesota v. Williams, 593 N.W.2d. 227, 233 (Minn. 1999); State v. Hawkins, 260 N.W.2d.150 (Minn. 1977).

Other jurisdictions, however, are abandoning phrases such as "clear link" and "point directly" for a reasonable doubt standard. For instance, in Alaska, while the phrase "directly connect" is used, courts have warned against reading the phrase too narrowly. Smithart v. Alaska, 988 P.2d. 583, 586 (Alaska 1999). The Smitart court stated that "there is no requirement that the proffered evidence must prove or even raise a strong probability that [a third party] committed the offense. Rather, the evidence need only tend to create a reasonable doubt that the defendant committed the offense." Id. at 588; see also New Jersey v. Sturdivant, 155 A.2d. 771, 778 (N.J. 1959) (adopting a similar rule in New Jersey); Rivera v. State, 561 So.2d. 536, 539 (Fl. 1990) (adopting a similar rule in Florida). Like New York, the D.C. Circuit previously used the phrase "clearly linked" as well. Brown v. United States, 409 A.2d. 1093 (D.C. 1979). However, in Winfield v. United States, 676 A.2d. 1 (D.C. 1996), the D.C. Circuit Court stated that "the phrase 'clearly linked' is unhelpful and should be discarded from our lexicon of terms governing the admissibility of third-party perpetrator evidence." Winfield v. United States, 676 A.2d. at 11.

California takes another approach, where the courts mandate that "to be admissible, the third-party culpability evidence need not show "substantial proof of a probability" that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt." California v. Hall, 41 Cal.3d. 826 (Cal. 1986). The Hall court does agree, however, that such evidence can be excluded only where the court properly exercises its discretion under the applicable evidence code, which rejects evidence that creates a substantial danger of prejudice, jury confusion, or delay. Id. at 833.

Similarly, South Dakota's "third-party perpetrator rule" weighs the probative value of a defendant's proffered evidence against the state's interest in preserving orderly trials and excluding unreliable or prejudicial evidence. State v. Luna, 378 N.W.2d. 229, 234 (S.D. 1985) (holding that the trial court properly excluded evidence that the murder victims' relative or another individual committed the murders to avoid jury confusion). The Luna decision is based on South Dakota evidentiary law, "which provides that relevant evidence may be excluded only if its probative value is substantially outweighed by the harm likely to result from its admission." Id., citing South Dakota v. Braddock, 452 N.W.2d. 785, 789-790 (S.D. 1990).

Another approach taken in a minority of states allows third-party culpability evidence only when the prosecution's case is entirely circumstantial. See McCord, supra at 926-927 (indicating that only Texas and Alabama take this approach); see also Erwin v. State, 729 S.W.2d 709 (Tex. 1987); Coral v. State, 628 So.2d 954 (Ala. Crim. App. 1992). Although Kansas statutory law appears to apply this approach, case law suggests that third-party culpability evidence may be allowed even if the prosecution's case is based on direct evidence. State v. Peckham, 875 P.2d 257, 266 (Kan. 1994).