Abuse of discretion and 404(B)
If you do appeals work on a consistent basis, here's a phrase you've seen hundreds of times: "We review a trial court's decision to admit evidence for abuse of discretion."
Why? In a lot of situations, it makes sense. A trial judge is going to have a much better "feel" for how the trial's going than a court of appeals will reading the transcript six months later, so it's logical that the court would defer to the judge's determinations on things like whether the evidence is relevant, or whether it should be excluded because it's cumulative or because its probative value is outweighed by its prejudicial effect. The judge also has the superior opportunity to make credibility determinations, so when those determinations are required for deciding whether, say, handwriting or a voice recording has been authenticated, an appeals court should defer on that as well.
But what about whether a statement was an excited utterance, or testimonial under Crawford, or was admissible to show motive or intent under 404(B)? Those are really determinations of law, not fact or procedure, and it isn't at all clear how the trial judge would be in any better position to make that determination than the appellate court.
And what do we mean by "abuse of discretion" anyway? There are loads of opinions which talk about it being "more than an error of law." Does that really mean that a judge has the "discretion" to admit hearsay, even if it doesn't fall within one of the exceptions?
Those were some of the questions raised by State v. Morris, but judging by the oral argument on the case yesterday in the Ohio Supreme Court, what the answers are going to be -- or even whether there are going to be any answers -- is up in the air.
I'd blogged about Morris when it first came out of the 9th District. Actually, it came out three times. Morris was charged with raping his 9-year-old stepdaughter, and in the initial decision, the court reversed his conviction, holding that the trial judge erred in admitting certain 404(B) evidence, like testimony that he'd sexually propositioned another stepdaughter, this one an adult, on her wedding day. (Moore's convictions for being a boor and lacking any semblance of class were affirmed.) The majority opinion didn't mention any standard of review, but the dissent argued that the trial court's decision should have been reviewed for abuse of discretion, and that the trial judge hadn't committed one. That prompted the State to ask the court to certify the case to the Supreme Court as being in conflict with all the other appellate decisions holding that abuse of discretion is the appropriate standard for reviewing 404(B) evidence. The court shot that down, contending that there really wasn't a conflict: while other courts did invoke the abuse of discretion standard, all of them had wound up holding that the evidence met the requirements of 404(B); no court had held that the evidence wasn't proper under 404(B), but the trial judge hadn't abused his discretion in admitting it anyway. The State next sought en banc review, but the court, by a 3-2 decision, rebuffed that as well. In fact, the Supreme Court initially denied review, but the State finally brought home a winner by getting the court to accept the case on reconsideration.
If any of the justices were inclined to hold that de novo review was the proper standard for determining admissibility of 404(B) evidence, they kept it to themselves. In fact, Justice O'Donnell hinted that this may actually be much ado about nothing: didn't every single decision say that abuse of discretion was the standard, and if so, wasn't this whole case really just about error correction, which the court is loathe to do?
Chief Justice O'Connor also seemed to want the case to just go away, noting that in its denial of en banc review, the majority had said that even if it would have reviewed the issue under an abuse of discretion standard, it would have held the evidence inadmissible. But Justice Lundberg Stratton honed in on that in her questioning of the defense attorney. A closer reading of the en banc opinion shows that the 9th had held that it would have reversed on an abuse of discretion standard because the evidence wasn't admissible under 404(B), and thus the judge had abused his discretion in admitting it. Wasn't that "bootstrapping," asked Lundberg Stratton: wasn't the court in fact engaging in a de novo review in holding that the evidence didn't fit under 404(B), and then using the abuse of discretion standard in deciding that the judge shouldn't have admitted it? Shouldn't the court have used the abuse of discretion standard in determining in the first instance whether the evidence met the requirements of 404(B)?
This launched a discussion of the "two-step" process under 404(B): first, to determine whether the testimony fits into one of the exceptions to the general prohibition against evidence of other crimes or bad acts committed by the defendant, and then to determine, under 403(A), whether the probative value of the evidence is outweighed by its prejudicial effect. (That's really not endemic to 404(B) evidence, though; all evidence -- hearsay, whatever -- is theoretically barred if the scale on 403(A) tips it into being unfairly prejudicial.) That led to some spiriting questioning of the prosecuting attorney. Chief Justice O'Connor began it with the question of whether the admission of unfairly prejudicial evidence was an abuse of discretion. The prosecutor hemmed and hawed, finally acknowledging that it could be if the wrongful admission of the evidence "undermined the confidence" in the outcome of the trial. That's not much of a concession; that's pretty much the standard for determining whether or not error is harmless. This left an opening for Justice Pfeifer to inquire exactly what constituted an abuse of discretion. The prosecutor initially replied that making a decision without hearing arguments would qualify, which wasn't helpful to his cause: judges make decisions all the time based on no more "argument" than an attorney shouting "objection!" He finally retreated into the wording of the standard, saying an abuse of discretion could be found if the decision was "unreasonable." Okay, well, as long as it's that definite...
The court's certain to issue an opinion in Morris, rather than to simply dismiss it as improvidently granted. What that opinion's going to be is another matter. O'Connor followed up on Lundberg Stratton's question and suggested that clarifying the "two-step" process would be a proper subject of an opinion. Whether that happens, and what that two-step process is going to entail remains to be seen, but after the oral argument, it's hard to envision de novo review being part of it.