Prosecuting Raskolnikov: a literary and legal look at "consciousness of guilt" evidence

In all literature, there is perhaps no more vivid example of a man wrestling with the knowledge of his own guilt than that of Raskolnikov in Dostoyevsky's Crime and Punishment. (2) The nineteenth century Russian novel begins with the brutal murder of an old pawnbroker and her sister, and then unfolds into a remarkable tragedy in which the author explores the nature of crime, the human condition, and a young law student's guilt. Literary scholars have noted that what separates this novel from Dostoyevsky's later works is the author's obsessive focus on the murder. (3) That focus, however, does more than add to the artistic economy and structural cohesion of the novel, it emphasizes the importance of Raskolnikov's guilt and the way in which it drives him and influences his actions.

   The commission of a crime leaves usually upon the consciousness a
   moral impression that is characteristic. The innocent man is without
   it; the guilty man usually has it. Its evidential value has never
   been doubted. The inference from consciousness of guilt to "guilty"
   is always available in evidence. It is a most powerful one, because
   the only other hypothesis conceivable is the rare one that the
   person's consciousness is caused by a delusion, and not by the
   actual doing of the act. (4)

It is sometimes remarked that Raskolnikov felt no guilt or was not, at least, conscious of his guilt. (5) This article disputes the notion that Raskolnikov was not consciously aware of his guilt, while addressing and explaining the use of 'consciousness of guilt' evidence in contemporary criminal practice. The reader is invited to cast an inquisitorial eye upon a nineteenth century literary murder and prosecute Raskolnikov--illuminating not only a great work of literature, but also an area of the law that is critical for successful prosecution of the modern malevolent. (6)

Raskolnikov's crime is an exceptionally apt subject, not only because the novel is replete with evidence of guilty behavior, but also because his heinous crime was committed in the nineteenth century--before the availability of fingerprint evidence (7) or DNA evidence. (8) Further, the crime was committed in such a way as to leave no living witnesses who could testify as to what occurred. (9) Therefore, without a great deal of physical evidence or direct evidence, a prosecutor would need to turn elsewhere to adduce enough proof to assure a conviction. It is in such situations that the effective use of "consciousness of guilt evidence" is critical.

I. Consciousness of Guilt Evidence

Evidence of consciousness of guilt has long been admissible in criminal trials for the purpose of proving the guilt of an accused. As early as 1896, the U.S. Supreme Court spoke of its use as a foregone conclusion, though warned of attaching to it too much significance. (10)

American criminal courts have continued to recognize the validity of such evidence, consistently allowing into evidence facts that tend to establish an accused's consciousness of guilt. (11) In federal criminal courts, evidence of an accused's consciousness of guilt is admitted under Federal Rule of Evidence 404(b). (12) Rule 404(b) expressly allows the use of evidence of other crimes, wrongs, or acts for purposes of proving things other than character or propensity to commit crime (such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). (13) While rule 404(b) does not expressly list consciousness of guilt as a permissible purpose for introducing evidence of other crimes or acts, the list of factors articulated within the language of the rule is illustrative rather than exclusive. Accordingly, other crimes, wrongs, or acts are admissible for other purposes--such as demonstrating consciousness of guilt. (14)

Military courts have also long recognized that evidence showing an accused's consciousness of guilt can be used as circumstantial evidence of guilt. (15) In courts-martial, evidence of other misconduct, crimes, or acts that show an accused's consciousness of guilt is admissible under the military counterpart to the federal rule, Military Rule of Evidence 404(b). (16) The analysis of MRE 404(b) in Appendix 22 of the Uniform Code of Military Justice expressly states, "Rule 404(b) provides examples rather than a list of justifications for admission of evidence of other misconduct. Other justifications, such as the tendency of such evidence to show the accused's consciousness of guilt of the offense charged, ... remain effective." (17) There is a three-part test for determining the admissibility of consciousness of guilt evidence. The evidence must reasonably support a finding by the court members that the accused committed the prior crimes, wrongs or acts; the evidence must make a fact of consequence more or less probable; and the probative value of the evidence must substantially outweigh the danger of unfair prejudice. (18) Consciousness of guilt evidence is inadmissible if it does not satisfy all three requirements.