New day dawning for 404(B)
A third-grade teacher picks out a student at the beginning of the school year, befriending him, becoming a mentor, becoming close to him, and eventually turns it into a sexual relationship. The boy goes off to the 4th grade the next year, and the teacher begins the process anew in September with his incoming class. The cycle repeats: selecting the child, grooming him, then having a sexual relationship. This goes on for three more years, after which the teacher is caught and prosecuted for rape of the last child. Can evidence of the four previous relationships come in at trial?
That was the hypothetical Chief Justice O'Connor posed to defense counsel Wednesday in the oral argument in State v. Williams. It was pretty clear what she thought was the correct answer was, and it equally clear that majority, if not all, of the justices shared those sentiments.
Williams didn't quite present that scenario. As I explained when the 8th District handed down its en banc decision on the case last year (discussion here), Williams was accused of raping a 16-year-old male student; the trial court allowed the State to introduce evidence that 12 years earlier, Williams had had another sexual relationship with a 16-year-old male student. The appellate court reversed, finding that the evidence wasn't admissible under EvidR 404(B).
That rule prohibits evidence of other bad acts to show that a person acted "in conformity therewith": you can't prove that Joe Smith robbed three banks before just to show that he must have robbed the one he's now charged with. Basically, it prohibits the "he did it before, therefore he must have done it again" argument. But not completely; the rule then says such evidence "may be admissible for other purposes," and then lists nine exceptions: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The Williams court, in keeping with a 1975 Supreme Court decision, held that the "plan" exception applied in only two situations: where it proved identity (the "behavioral fingerprint"), or when it was part of the immediate background of the crime charged. The two incidents in Williams occurred twelve years apart, and identity wasn't at issue: Williams wasn't claiming that someone else raped the child, he was claiming that it never happened at all.
The State began the oral argument by trying to expand how the plan exception could be used, contending that it could also go to show intent, that is, that the acts were committed for sexual gratification. This prompted the logical rejoinder, by Pfeifer: what possible other intent could there have been? Telling someone you had sex rarely prompts the response, "What did you do that for?"
But from there on, the prosecutor had smooth sailing. In fact, it soon became apparent that he'd sold his argument short. Like Williams, he'd bought into the idea that the "plan" exception had to be tied in to one of the other exceptions, but, as exemplified by O'Connor's question, the justices seemed quite willing to embrace the idea that the plan exception could wear Big Boy pants and stand up on its own.
There's obviously something to be said for that position; after all, the rule doesn't specify that plan can only be used to prove one of the other exceptions. But leads to the next question: what are the parameters of the plan exception? Once you unmoor it from the others, you're left with little but the argument that this is what the defendant did before, so it's more likely that he did it this time -- the very type of propensity evidence the rule is intended to exclude. One could argue that plan refers to offenses committed as part of a course of criminal conduct, but that might be too limited, and becomes arguably inconsequential. As the defense lawyer pointed out in response to O'Connor's hypothetical, realistically the defendant wouldn't be faced with the prospect of having to defend one child rape case while evidence of four others was admitted; he'd be charged with five counts of child rape.
So what's the court going to do with Williams? Reversal is a foregone conclusion; the real question is what 404(B) winds up looking like after the court's done with it. I don't see a high likelihood of extensive damage, from the defense point of view. There are several avenues by which the court could limit the reach of its decision. One is to address the particular facts here, an approach the court has generally favored in the past, as opposed to writing expansively. As McGee Brown noted, the Williams opinion conceded that the 8th District had previously held in numerous cases that evidence of "grooming" in child rape cases was admissible in itself, apart from any issues of identity, and the court could focus on that.
One issue the court is unlikely to address, though, is the required weighing of the prejudicial effect of 404(B) evidence. The Williams court had held that even if the evidence would have been admissible under 404(B), it should have been excluded under 403(A) because its probative value was outweighed by its prejudicial effect. Lanzinger raised this issue briefly, but it didn't go anywhere after that.
Another issue the court's unlikely to tackle is just how closely the 404(B) evidence has to mirror the current charge against the defendant. The courts have previously held that there must be some temporal proximity, but if a twelve-year gap makes the cut, it's hard to see what wouldn't. What about the factual similarities between the two incidents? Is "prior homosexual relationship with 16-year-old boy" sufficient? How about if we throw in "grooming" or "acting as male role model"? If both boys' father's aren't present?
That's why I think the Supreme Court's decision earlier this year in State v. Morris (discussed here) has much bigger ramifications for how 404(B) evidence is utilized than anything likely to come out in Williams. Before Morris, one could argue that the precise contours of the plan exception were determined by the appellate courts on de novo review, which could provide definitive guidance on that issue: yes, grooming is enough, or no, it isn't. Instead, Morris leaves that up to the discretion of the judge. One thing Williams is very likely to do, and that's give a green light to 404(B) evidence in child sex cases. Judges view those defendants with a jaundiced eye anyway -- McGee Brown expressed concern that excluding the evidence in Williams would allow defendants in such cases to "get away with it" -- and an abuse of discretion standard is going to be an insurmountable obstacle in those situations. It's more than likely that "prior homosexual relationship with 16-year-old boy" is going to be quite enough.