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404(B) after Williams

courtgavel_4.jpgOf all the various types of evidence that can be used against a defendant, there's none more deadly than EvidR 404(B), which allows the State to introduce evidence of prior "bad acts" of a defendant in certain circumstances. It's bad enough when you've got a client on trial for, say, robbery, and the State introduces evidence that he's got prior drug convictions. That's why we rarely put our clients on the stand if they've got criminal records. But if the conviction is for the same offense they're on trial for, well, that's pretty much The End.

That's what happened to Van Williams: he was charged with kidnapping, rape, and gross sexual imposition of a 14-year-old boy, and the trial judge allowed in evidence that Williams had a consensual sexual relationship with a 16-year-old boy twelve years earlier. Williams was convicted, but the 8th District reversed that last year in an en banc decision, which I called "essential reading if you've got a case involving 404(B) evidence."

Well, so much for that. Not that the Supreme Court's reversal of Williams last week came as any surprise; in my review of the oral argument, I'd said reversal was "a foregone conclusion." (Brief timeout here for obligatory stopped clock/blind squirrel metaphors.) So how bad was it? Well, it could have been a lot worse. Let's take a look.

We'll start with the 8th's decision. EvidR 404(B) generally prohibits character evidence to prove conformity -- he did this before, so he must have done it this time -- except in certain situations: "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The 8th in Williams had held that the evidence was offered by the State to prove "plan," but that "plan" evidence was limited to two situations: where it was so idiosyncratic that it served as a "behavioral fingerprint," and thus could prove identity, and where it was inextricably related to the immediate background of the crime. For this, the 8th relied upon the Supreme Court's 1975 decision in State v. Curry, which said precisely that. The situation in Williams didn't satisfy either of those criteria. The other incident had occurred 12 years earlier, and identity wasn't at issue: Williams wasn't claiming that he wasn't the one who raped the victim, he was claiming that it hadn't happened at all.

After reciting the facts, O'Donnell's majority opinion for the Supreme Court (only Pfeifer dissented, with Lanzinger concurring only in judgment) notes that there are really two provisions on "other acts" evidence: the rule, and RC 2945.59. In its amicus brief, the Attorney General's office argued that the rule superseded the statute, and was broader: that it gave the trial court discretion to allow evidence of other crimes or acts for "other purposes," behind those enumerated in the rule. The court's opinion never addresses the first argument, but comes close to adopting the second, at one point acknowledging that the rule "affords the trial court discretion to admit evidence of other crimes, wrongs, or acts for 'other purposes,' including, but not limited to, those set forth in the rule." But then the issue is dropped, and doesn't really resurface. Good news on that front. Especially after the court's ruling earlier this year in State v. Morris (discussed here), which held that review of a trial court's ruling on 404(B) evidence was limited to abuse of discretion, a holding that the exceptions to 404(B) weren't limited to those contained in the rule, but could be anything that a judge conjured up, had the potential for serious mischief.

The opinion then distinguishes Curry -- the decision didn't "limit admissibility to only those two situations [identity and immediate background]," and Curry predated the rule -- and then moves on to articulate the test that should be used in determining admissiblity of other acts evidence. The first step, we're told, is "to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." That's nice, but that's the first step in determining the admission of any piece of evidence: whether it has probative value.

The second step provides little more guidance: it requires consideration "of whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B)." Again, that's little more than a restatement of the rule. It might have been more instructive had the opinion fleshed out why the evidence in Williams fell on one side of that line or the other, but it doesn't. In fact, this is one of the more troublesome portions of the opinion:

In this case, contrary to the view expressed by the court of appeals, the state did not offer the evidence of the Williams-A.B. relationship to show that abusing J.H. was in conformity with Williams's character. In fact, the trial court gave two limiting instructions that this evidence was not being offered to prove Williams's character -- one just prior to the testimony of A.B., and one prior to deliberation. We presume the jury followed those instructions.

This works out to little more than "we know the state didn't offer it for that purpose, because the trial court instructed the jury that it wasn't offered for that purpose." And that also works its way into the third step, which requires an analysis of whether the probative value of the evidence outweighed by its prejudicial impact: "This evidence is not unduly prejudicial, because the trial court instructed the jury that this evidence could not be considered to show that Williams had acted in conformity with a character trait." Does the court really mean to suggest that the entire analysis of whether evidence is more prejudical than probative can be avoided simply by giving the curative instruction?

It might not be as bad as all that, though. In my oral argument review, I'd suggested that the court might limit the reach of its decision to the particular facts here, and focus mostly on the use of 404(B) evidence in child sex cases. And that's largely what happens: the court emphasizes that the evidence showed "that Williams had targeted teenage males who had no father figure to gain their trust and confidence and groom them for sexual activity with the intent of sexual gratification." Moreover, the application of Williams to other situations isn't readily discernible. Probably the best you can do with Williams is argue that while "plan" evidence is not limited to proving identity, you still have to prove a plan, which requires more than just showing the defendant committed a similar crime before: there has to be sufficiently distinct behavior across the offenses to demonstrate a particular pattern of conduct. I'd worried that the court's decision would amount to a holding in these situations that "a prior homosexual relationship with a 16-year-old boy" would be sufficient to allow admission. Read properly, Williams seems to require more than that.

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