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Taking another look at 404(B)

The defendant is charged with sexually molesting a 15-year-old boy. At his trial, can the state introduce evidence that, 12 years earlier, he had a consensual sexual relationship with a 16-year-old boy? The trial judge thought so, but the 8th District came to the opposite conclusion last year in State v. Williams. That's another case heading for oral argument before the Supreme Court next week.

There is a general rule against "propensity" evidence: evidence that a person acted a certain way on this particular occasion because he has acted that way in the past. Nowhere is this more significant than with regard to prior "bad acts" of a defendant. That's why we almost never put a client on the stand who has a criminal record: we know that, regardless of the jury instructions that they're only to consider the prior convictions in regard to the defendant's credibility, they'll use it as proof that he committed the crime he's now charged with.

That danger is heightened by EvidR 404(B), which allows evidence of the defendant's prior bad acts to come in under certain circumstances, and there is probably no evidentiary rule more potentially damaging to a criminal defendant. You can recover from a number of things in a course of a trial: hearsay can be mitigated, effective cross-examination can mute the impact of otherwise damaging evidence. It may even be possible to diminish the significance of your client's prior criminal record: a jury in a murder trial might see little relevance to your client's prior conviction of drug possession. But if the jury finds out that your client was convicted of, or even committed, acts similar to the one for which he's on trial, it's pretty much Game Over.

For that reason, the rule strictly limits the circumstances in which evidence of prior bad acts is admissible: it can't be used to prove a character for criminal propensity, but "may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The prosecution in Williams argued that it was admissible to prove intent, because Williams' lawyer had said in opening statement that Williams was heterosexual and had no interest in young boys. The court dismissed that with a single sentence, essentially, that proof of a consensual sexual relationship 12 years before didn't prove that Williams' purpose in this case was to achieve sexual gratification with the victim here, and also noted that it was premature to allow the state to introduce that evidence in its case-in-chief, rather than in cross-examination of the defendant or rebuttal.

Although the trial court hadn't addressed it, the state also argued the "plan" exception. (There's a statute prohibiting other acts evidence, RC 2945.59, which predates the rule, and which refers to this as the "common scheme or plan" exception.) There were indeed a number of similarities in the incidents involving the two boys: the age, the fact that Williams assumed a father-figure role model with them, and other "grooming" behavior. Here, the court relied on the Supreme Court's 1975 decision in State v. Curry, which held that the "scheme or plan" exception is limited to situations in which the crimes are inextricably linked -- if your client robs three Convenient stores in a day, at trial for the third one the evidence of the other two is coming in -- or proof of identity. The rationale behind that is that where the crimes are very similar in their details, they act as a "behavioral fingerprint," and one can conclude that whoever committed the earlier ones also committed this one. Of course, that's not relevant where identity isn't at issue, and it wasn't in Williams: the question wasn't who had molested the victim, it was whether it had happened at all.

That will be the focus of the arguments next week by the prosecution and the Attorney General, who filed an amicus brief. Although courts have treated the statute and the evidentiary rule as essentially being one and the same, the state argues that the statute was rendered obsolete by the adoption of the rule in 1980; under the Modern Courts amendment, rules take precedence over statutes in procedural matters. This provides a nice way of getting around Curry, since that decision was based on the statute, coming as it did five years before the rule was adopted. The AG's brief goes much farther, arguing that the rule is much more expansive than the statute was, that the exceptions in the rule are not an exhaustive list, and that while the statute favored exclusion, the rule favors inclusion, the latter argument summarized thusly:

Put another way, the statute was a fishing net, ensnaring all but a small category of other-acts evidence. The Rule instead operates as a fishing hook, plucking out only the worst sort of other-acts evidence.

I'm not sure exactly what that means, but you can bet that I'll be using more fishing metaphors in the weeks to come.

The defense brief inWilliamsdoes an excellent job making the central argument: this was indeed nothing more than propensity evidence -- Williams liked having sex with young boys in the past, so he must have had sex with the young boy here. And that's plainly prohibited by 404(B).

How's it all going to shake out? One of the problems for the state is that the 8th District held that even if the evidence was admissible under an exception in 404(B), its prejudicial effect outweighed its probative value. (That's a separate analysis required by the rule.) The AG's brief tries to get around that by not arguing for outright reversal, but rather reversal and remand so that the 8th District can consider the question under the "correct" legal standard.

This is one of those cases where the result is probably less important than the path the court takes in reaching it. If the court holds that the evidence was properly allowable to prove intent, that's too bad for Williams, but an acceptable result for the defense; it still substantially limits 404(B) evidence. If the court looks like it's willing to accept some of the AG's position, especially that admissible evidence includes that beyond the listed exceptions, that's another story.

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