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Catching up

I spend most of my time here discussing cases from the Supreme Court -- the one on the Potomac and the one down Columbus way -- and cases out of the 8th District, but every now and then there's a case from one of the other districts that merits extended discussion. I'll talk about several of them today.

Your client is on trial for robbing a bar. The State wants to show that your client committed three prior robberies over the previous. Under EvidR 404(B), in order to do that, the State has to show that the three prior robberies were committed just about exactly the same manner as the one he's being charged; that the "modus operandi" served as sort of a behavioral fingerprint, such that a person can conclude that the same person would have had to have committed all four crimes.

But let's say that your client's on trial for robbing a bar, and you want to show that there were two other robberies committed in the previous year, except that somebody else was convicted of those offenses. Essentially, you're arguing the converse of what the State is: that because the crimes were committed in the same manner, and somebody else committed the previous ones, that person, not your client, also committed the most recent offense. Do you have the show the same degree of similarity between the crimes that the State would have had to show if it was using it against your client?

No, says the 2nd District a couple months back in State v. Gillispie, introducing us to the concept of "reverse 404(B)" evidence: evidence of prior offenses introduced to exonerate, rather than incriminate, a defendant. The reason we exclude evidence of prior acts of the defendant is because there's a high potential for prejudice, for the obvious reason that once the jury hears your client's a bad guy for what he did in the past, they're more likely to conclude he did it again. But, the court concludes, that concern about prejudice is absent when we're talking about somebody besides the defendant, in fact, someone who's not even present. Thus, the "strict copycat" requirement for evidence against the defendant is relaxed when it's the defendant seeking to introduce it; the similarity between the two crimes doesn't have to be nearly as close.

Gillispie's not an easy read, and that's complicated by its procedural posture; the opinion is actually a reconsideration of an earlier decision, in which the court completely ignored the 404(B) issue. (That's one of the reasons for the reconsideration.) But the opinion does a very thorough analysis of the issue, and is well-researched. If you've got a case where you're trying to focus blame for the crime on somebody else, the case is a must-have. Most interesting is its discussion of why there's really no such thing as "unfair prejudice" to the State.

Four years ago, in Heller v. District of Columbia, the Supreme Court held that the 2nd Amendment guaranteed an individual, rather than collective, right to bear arms, and followed that up two years later by holding in McDonald v. City of Chicago that the 2nd Amendment applied to the states. The Court took pains to note that this didn't prohibit "reasonable" regulations, but didn't get around to explaining exactly what those regulations might be, or how to determine whether they were reasonable: should the test be strict scrutiny, rational basis, or something in between?

That issue crops up in two cases this year, both involving the statute on improper handling of a firearm. In State v. Henderson, the 11th District rejects the 2nd Amendment challenge, but how it arrived at that result is murky, at least with regard to what test should be employed. The author of the majority opinion applied an intermediate test, which basically looks to whether the law is narrowly tailored to achieve a substantial state interest, and concluded that the statute was: it limited the accessibility of firearms, but didn't prohibit their transportation altogether. The concurring judge, though, seems to contend that the rational basis test is appropriate, and the other judge dissented, finding that the statute was unconstitutional, but not indicating what test should be used to determine that.

The 9th District reached a different conclusion last month in State v. Shover. The defendant raised a slightly different argument: he contended that the statute was facially unconstitutional because it did not contain an exception for carrying the gun for self-defense, as does the concealed carry statute. That was a good move, because Heller held that the right of self defense was the rationale behind the 2nd Amendment. The trial judge had denied a motion to dismiss, finding that Heller and McDonald didn't apply because the Ohio Constitution contained a right to bear arms. (Yeah, I can't figure that one out, either.) The opinion contains an excellent discussion of the intermediate scrutiny test, which it applies, and the court remands the case back to the trial judge for consideration of the 2nd Amendment issues. There are probably going to be more gun rights cases coming up, and Shover is a good place to start if you've got one.

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