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The Supreme Court takes a look at 404(B)

It coulda been a contender.

The 9th District's 2010 decision in State v. Morris had the potential to radically alter the way evidence, and specifically 404(B) "other acts" testimony, is handled by appellate courts.  Not at first blush, to be sure.  It was a case involving an unsavory defendant and an unsavory set of facts:  Morris would ejaculate into a towel or t-shirt after having sex with his wife, and kick the dog when she wife refused sex, and he propositioned his adult step-daughter shortly after she got married.  Somehow, all this made its way into his trial for raping his stepdaughter when she was nine, and again when she was twelve.  The 9th District reversed in a split decision, finding that the testimony didn't qualify under EvidR 404(B)'s allowance of other acts evidence.  You could quibble with the result, but it wasn't outlandish; the State had sought to introduce the evidence under the "modus operandi" exception, and the court seemed to have a valid point in holding that the testimony about kicking the dog was only introduced to dirty up Morris, and an interest in one's adult stepdaughter, however unhealthy, didn't show that he would have an interest in a nine-year-old.

That's when the trouble started.  The majority hadn't mentioned a standard of review, but the dissent argued that it should've been reviewed for abuse of discretion, and that abuse hadn't been shown.  The State then filed a motion to certify the decision on the basis that it conflicted with other cases which have held that abuse of discretion is the appropriate standard.  That got shot down in the 9th, but the Supreme Court eventually accepted the case.  After the oral argument last fall, I predicted that the court would reverse, as would anyone else who saw the argument. 

And sure enough, yesterday the Supreme Court unanimously reversed.  What it had to say about standard of review, beyond that abuse of discretion was the proper choice, was minimal.  What it had to say about 404(B) evidence is worrisome.

The court's conclusion that review should be for abuse of discretion is easily explained, but less easily understood.  The opinion notes that de novo review is proper "where a trial court's order is based on an erroneous standard or a misconstruction of the law.  In determining a pure question of law, an appellate court may properly substitute its judgment for that of the trial court."   Here, the 9th District made "a legal determination" that the evidence didn't meet the requirements for Rule 404(B) evidence.

Me, I would've figured that making "legal determination" of that sort falls within the job description of an appellate court judge.  Not so much, it turns out.

Here, the substantive law under the rule is clear:  evidence of other crimes, wrongs, or acts, although not admissible to prove the character of a person in order to show action in conformity therewith, may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The language of Evid.R. 404(B) indicates that the list of purposes for which evidence of other crimes, wrongs, or acts may be admitted is not an exhaustive listing.

From the emphasized words, the court concludes that "the trial judge has considerable discretion" to determine whether the evidence qualifies, and whether it should be admitted.  And since evidentiary determinations have historically been held to be "within the broad discretion of the trial court," that's what the appeals court should have done here.

Missing from the court's opinion is any effort to explain why evidentiary determinations, at least this one, should be governed by an abuse of discretion standard.  There are obvious reasons to grant trial judges discretion in a number of areas.  A judge has a much better sense of the flow of a trial, and thus in a better position to determine whether examinations should be abbreviated, whether witnesses are cumulative, etc.  He's even in a better position to determine certain evidentiary issues, such as those depending on credibility determinations, like whether a voice recording is authenticated, or whether a statement was truly an "excited utterance."  The abuse of discretion standard should be utilized whenever the judge is in a better position to make the determination than an appellate court, reading a cold record.

But let's look at the evidence in Morris' case, specifically that involving the adult stepdaughter's testimony that Morris had "grabbed her waist and pulled her toward him and said, 'You don't know what I would do to you but your mother would get mad.'"  The trial court concluded that this was similar enough to the rape of a minor to make it admissible under 404(B) to show "proof of motive, opportunity, intent, preparation, plan, knowledge, or absence."  It's hard to quarrel with the 9th's conclusion that  "a man's attempt to engage in sexual activity with an adult, married woman does not demonstrate a common scheme, plan, or system for using a child under the age of ten or thirteen for his sexual gratification," but more to the point, where and why should discretion enter into this?  The Supreme Court's ruling here implies that there are situations in which a man's attempt to engage in sexual activity with an adult married woman does demonstrate a common scheme or plan to have sex with a ten-year-old, and times when it doesn't, and the trial court is in the best position to decide which is which.  I don't see a logical or empirical basis for drawing any of those conclusions.

And this isn't just any old evidentiary issue.  There are lots of cases talking about how the exceptions for 404(B) evidence should be strictly construed against admissibility, and for good reason.  A defendant can certainly be damaged by the admission of an excited utterance or a statement which falls within some other hearsay exception, but evidence that a defendant has committed an offense similar to the one he's on trial for is usually fatal.

Which raises another problem with Morris.  In the past several years, numerous courts, especially the 8th District, have substantially limited the use of 404(B) evidence by vigorously enforcing its limitations.  (The 8th's decision in State v. Williams, discussed here, is perhaps the best example.)  But the Morris opinion arguably rolls that back.  Particularly troublesome is the court's casual rejection of the notion that the factors enumerated in 404(B) represent an "exclusive list."  If it's not, what else is on there?  What should be used in determining what the other factors might be?

Morris should have held that whether evidence falls within one of the exceptions of 404(B) is a legal determination, and that the judge's discretion extends to deciding whether it should be admitted, in light of its severely prejudicial impact.  (The rule specifically requires that even if it falls within one of the exceptions, admissibility is conditioned on the analysis of whether the prejudicial impact outweighs the probative value required by EvidR 403.)  Its conclusion of what standard of review should be employed in reviewing that question, though, troubles me far less than its cavalier analysis of 404(B).

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