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Abuse of discretion and admission of evidence

There wasn't much question that Carl Morris was a boor:  he kicked the dog when his wife refused to have sex with him, and propositioned his adult step-daughter a few months after she'd gotten married.  The question was whether that evidence should have been admitted in his trial for raping his other stepdaughter when she was nine, and again when she was twelve.

And the even bigger question in the 9th District's decision in State v. Morris was what standard of review to use.

The state argued that the evidence was admissible as "other acts" under Evid R 404(B), as somehow showing Morris' motive, intent, or common scheme and plan.  The majority in Morris rejected that argument, and there's much to support their conclusion:  the admission of the testimony about the solicitation of the older daughter had no discernible relevance because, as the court notes, "there is a fundamental difference between a man's desire to engage in sexual activity with his wife's adult daughter and his desire to rape his wife's little girl." 

Morris wouldn't be notable for much besides offering the rare example of a case being reversed because of admission of 404(B) evidence, but what happens after the decision is where it gets interesting.  The opinion never mentions a standard of review, and the dissent picks up on that, arguing that the appropriate standard is abuse of discretion, and that wasn't shown here.   The State filed a motion to certify the case, contending that it presented a conflict with numerous decisions from other districts holding that abuse of discretion is indeed the appropriate standard for determining admissibility of 404(B) evidence.  And it is that decision, Morris II, which is of particular interest.

In most appeals, the standard of review is outcome-determinative.  There are few words more ominous than the passage in an appellate opinion, "We review the trial court's decision for abuse of discretion."  (Although your wife's announcing, "We need to talk" probably runs a close second.)  That sentence will be followed by a summary of how highly deferential that standard of review is:  most opinions will throw in the language about how it involves "more than an error of law," followed by phrases about how the lower court's decision must be "unconscionable" and reflect a "perversity of will," until the reader comes away with the impression that the standard requires the trial judge to have engaged in moral depravity on a scale that would have made Vlad the Impaler blanch.

But what does "abuse of discretion" really mean?  As the court in Morris II notes, in all the cases cited by the State where the abuse of discretion standard was supposedly employed, the appellate court found that the evidence met one of the exceptions enumerated in 404(B) to the general prohibition on using other acts evidence. 

The appellate court did not determine in any of those cases that the trial court violated Rule 404(B) but acted within its discretion in doing so, which is what this Court would have had to determine in order to affirm Mr. Morris's convictions.

That gets to the heart of the question:  why do we have an abuse of discretion standard?  A large part of it is because the judge has a better perspective on what's going on with the trial than an appellate court has.  As the Morris opinion notes, some evidentiary rules obviously invest a trial judge with a large measure of discretion.  The court can exclude evidence under 403(A) "if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury," and under 404(B) simply because it would result "in undue delay or needless presentation of cumulative evidence"; obviously, the trial judge is in a far better position to make that evaluation than an appellate panel.

In fact, that's part of the problem with 404(B):  it introduces a discretionary element, because even if the evidence falls within one of the exceptions, the judge still has to make a 403(A) analysis, and determine whether the probative value of the evidence is outweighed by its unfairly prejudicial impact.  But according to the court, whether the evidence actually falls within 404(B) is a matter to be determined de novo by the appellate court.

Much of this makes sense.  Although the "abuse of discretion involves more than an error of law" is found in countless citations, this 2nd District opinion, discussed here, called that into question:  ""no court -- not a trial court, not an appellate court, nor even a supreme court -- has the authority, within its discretion, to commit an error of law."  While how the evidence might impact a trial is certainly a matter best left to the judge who's presiding over the trial, it's not at all clear why the judge is in a better position to determine whether evidence meets one of the exceptions to 404(B).

Whether this can be extended beyond 404(B) is an open question.  Morris suggests that it can:

There is no discretion involved in determining whether testimony falls within the definition of hearsay or, if it does, whether it also comes within an exception to the prohibition to the admission of hearsay.  If it is hearsay and does not fall within an exception, it must be excluded.  An appellate court is in as good of a position as the trial court to determine whether proffered evidence is hearsay and whether it falls within an exception to the prohibition of the admission of hearsay as is the trial court. But, if the testimony is not hearsay, or is hearsay that falls within an exception, that does not mean it must be received.  The trial court still has discretion to apply Rule 403 and exclude it.

I'm not sure I buy into that.  Whether hearsay falls into the excited utterance exception, for example, depends on some credibility evaluations that the trial court is in a better position to conduct.  What's more, the court's treatment of this makes abuse of discretion a one-edged sword:  the judge has no discretion to admit it, but does have the discretion to exclude it.

Still, given the prevalence of appellate courts' use of the abuse of discretion standard without really thinking it through, Morris (and the 2nd District's opinion cited above) offer a useful counterpoint, which should find its way into appellate briefs. 

POSTSCRIPT:  The 9th District refused to grant en banc review in Morris, and the Ohio Supreme Court declined jurisdiction.


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