404(B) Revisited
Mitchell Hartmann flirted with a girl in a bar, then went to her hotel room later on. According to her, he stuck his penis in her mouth while she was sleeping. According to him, it was consensual, and there was a middle version, too: that she was a willing participant up until the point where she realized it wasn't her boyfriend, who was staying in another room.
Chances of Hartmann selling the jury on his story or the middle one disappeared when the State put his stepdaughter on the stand to testify that when she was twelve, Hartmann came into her room on several occasions when he thought she was asleep and fondled her.
That testimony came in under EvidR 404(B), which permits proof of prior acts committed by a defendant similar to the one he's on trial for. The 8th reversed Hartmann's conviction, but then it went up to the Supreme, which has not, shall we say, shown a proclivity for siding with criminal defendants. To the shock of just about everybody, they not only ruled in favor of Hartmann, but did so unanimously.
Here are some takeaways:
1. Narrow construction. The rule prohibits general propensity evidence - the defendant committed a past crime, so he's more likely to have committed this one - but allows evidence of prior acts to prove motive, opportunity, scheme or plan, intent, identity, or absence of mistake or accident. The opinion by Justice DeWine begins by noting the danger that those lines can be blurred, and thus 404(B) evidence has to be narrowly construed.
2. Appellate review. Generally, admission of evidence is left to the discretion of the trial judge, but the court provides a different standard for 404(B) evidence: whether the evidence falls into one of the acceptable categories is a question of law, so it gets the much less deferential de novo standard of review.
3. Relevance. In State v. Williams, decided back in 2012, the court set up a three-part test for admissibility of 404(B) evidence, the first part of which was that the evidence had to be probative; in Hartmann, the court clarifies that this means probative to one of the exceptions under 404(B), rather than probative of guilt.
4. Evidence required. There's a threshold of proof required for admission. "For the evidence to be admissible, there must be substantial proof that the alleged similar act was committed by the defendant."
5. The probative/prejudicial balance. Even if the judge decides that 404(B) evidence is admissible, she still must weigh the probative value against the prejudicial effect. (This does get reviewed for abuse of discretion.) Hartmann says if the fact for which 404(B) evidence is sought to be introduced isn't really contested, it shouldn't come in, and suggests a balancing test: the less probative, the more likely it's prejudicial, and vice versa. And the court should consider whether the State is able to present alternative evidence to prove the same fact.
6. Modus operandi. The degree of similarity between the prior act and the crime can provide a "behavioral fingerprint," proving identity. That was what the State claimed here: that Hartmann's "modus operandi was to sexually assault females while they were asleep." But in Hartmann's case, the two incidents weren't sufficiently idiosyncratic, and identity was never at issue.
7. Common scheme or plan. The court notes that this is often confused with modus operandi, but it's different: the "plan evidence should show that the crime being charged and the other acts are part of the same grand design by the defendant." In short, the acts must be in close temporal proximity.
8. Motive. The State also argued that the prior incident established Hartmann's motive, but that was not in dispute: the obvious motive was sexual gratification.
9. Intent and absence of mistake. This is more complicated, and the court's reasoning here is a bit more convoluted. The upshot is that these exceptions bleed over into modus operandi: the evidence isn't admissible for these purposes unless there's close similarity between the acts.
10. Jury instructions. One of the reasons that the 8th reversed was that the judge had given the jury the full panoply of exceptions under 404(B), instead of narrowing the instructions to fit the particular exceptions at issue here. There's an old saw, which I just made up, that no judge ever got reversed for giving the instructions from OJI, but that might be debatable from here on out; that's exactly what the Supreme Court holds here. It's not a basis for affirmance, because the defense lawyer didn't object to the instruction, but it's a clear signal to the lower courts that they need to be doing that.
It's hard to overstate the significance of Hartmann; it's the most defendant-friendly decision from the Supreme Court in recent memory. The decision lays everything out so clearly that it may be years before the court needs to address the issue again.
More importantly from the defense perspective, there's a theme to Hartmann: again and again, the court stresses that evidence under 404(B) comes close to forbidden evidence of propensity, and should be avoided where possible. Perhaps even more significant than the court's clarification is the psychological effect of the decision: if a judge is considering whether to admit 404(B) evidence, a unanimous Supreme Court decision upholding the reversal of a judge who let it in can easily tip the scales in favor of exclusion.
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