What to do with 404(B) evidence
There are a lot of abilities a good trial attorney needs. Good interpersonal skills, the ability to read jurors and witnesses, are essential. You have to be able to think quickly on your feet, and some innate showmanship traits come in handy as well.
If there is one skill that is absolutely essential, though, it is a thorough knowledge of the rules of evidence. After all, trials usually come down to the evidence. If you don't know how to keep bad evidence out, and get good evidence in, you are going to lose trials that you would otherwise win.
This is particularly true of 404(B) evidence, because it's basically outcome-determinative. If the jury learns that your client has previously committed a crime very similar to the one he's on trial for, he's toast.
On Wednesday we talked about two cases recent cases where the 8th reversed convictions for improper admission of 404(B) evidence. I wanted to use those cases to take a harder look at the issue, and see just where the law stands right now. I'm going to focus on sex cases, because that's where admission of the evidence is most frequently sought.
Let's start with the rule. While normally "propensity" evidence -- the defendant committed a crime before, so it's more likely he committed this one -- is barred, EvidR 404(B) allows it to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
Prosecutors will often rely on motive and intent in trying to admit 404(B) evidence, but for the most part, courts have rejected that on the grounds that the motive and intent in sex cases is obvious: to achieve sexual gratification. Identity is normally not an issue either: the defendant is alleging that the sex didn't happen, or was consensual, not that somebody else did it.
The most common use of 404(B) evidence is to show a common plan or scheme. That's become much more muddled since the Supreme Court's 2012 decision in State v. Williams. Williams, a teacher, was accused of raping a 16-year-old male student, and the State introduced evidence that, twelve years earlier, Williams had engaged in a consensual sexual encounter with another 16-year-old male student. The 8th District threw out Williams' conviction, holding the evidence shouldn't have come in, but the Supreme Court reversed.
The 8th had based its decision on a 1975 Supreme Court case which held that plan or scheme evidence was limited to showing identity: basically, that the similarity between the two crimes was so great that it constituted a "behavioral fingerprint." The Williams court scotched that, holding that the "plan" exception could stand on its own.
Williams did establish a three-step analysis for determining the admissibility of 404(B) evidence: it must be probative, it must fall under one of the exceptions listed in the rule, and the probative value must outweigh the prejudicial effect.
This is essentially meaningless, though. Saying that the evidence must be probative adds nothing; that's the test for all evidence. That it must fall within one of the exceptions to the rule says nothing more than the rule does. And the rule also requires that the evidence be excluded if its prejudicial effect outweighs its probative value.
That's not to suggest that Williams was wrongly decided. The court emphasized 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," which is a fairly distinctive pattern.
Unfortunately, courts haven't been that rigorous in ensuring that the pattern is distinctive. A couple years back, in State v. Dove, the defendant was charged with trying to rape his child's 15-year-old babysitter, and the State introduced evidence that over a decade earlier, Dove had been convicted of unlawful sexual contact with a minor when he was found trying to perform oral sex on a sleeping 12-year-old. The 8th found the evidence admissible, even though there was no similarity in the sex acts. This was simple propensity evidence.
The two cases I discussed in Tuesday's post don't fall into that trap, but there are problems with both. The court rejects the admission of 404(B) evidence in State v. Hartman, deciding that since identity wasn't an issue, plan evidence was inadmissible. This runs directly contrary to Williams' holding that plan evidence need not be tied to proving identity. Still, there are differences between the two offenses, the age of the victims being the major one, and as I said on Tuesday, I think the court's conclusion that the probative value of the evidence was substantially outweighed by the prejudicial impact is the stronger argument.
In State v. Hart, Hart was charged with taking a 15-year-old down in a basement and raping her, and the State introduced evidence that twenty years earlier, Hart had taken a 15-year-old down in a basement and tried to rape her. Despite finding that there were "striking similarities" between the two offenses, the court concludes that the plan exception didn't apply, because Hart met the two by chance, so there really wasn't a "plan." I'm not sure I buy that; one could argue that the plan developed after Hart met the two. The two-decade gap seems to me the better reason for rejection of 404(B) evidence; if you're going to argue that the defendant had a plan, there should be some temporal proximity between the two offenses.
So what's a poor defense lawyer to do in light of all this? First, make as many distinctions between the two offenses as possible. This fits in with the general approach of highlighting the fact that propensity evidence is prohibited: isn't the State really arguing that the defendant's prior offense shows he committed this one? Second, emphasize Williams' last requirement, balancing the prejudicial impact against the probative value. As I said at the top of this post, there is nothing more prejudicial than 404(B) evidence.
Finally, your best bet, at least up here, is just showing the trial judge that two other judges recently got reversed for admitting this type of evidence. You can buttress that by citing the Supreme Court's decision in State v. Morris, which held that admission of 404(B) evidence was reviewed under the standard for constitutional error: any error had to be shown to be harmless beyond a reasonable doubt.
Comments