Other Bad Act Evidence: How to Avoid the Slings and Arrows

• Publication year: 1997
• Pages: 43

26 Colo.Law. 43 Colorado Lawyer 1997.

1997, April, Pg. 43. Other Bad Act Evidence: How to Avoid the Slings and Arrows

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43

Vol. 26, No. 4, Pg. 43

The Colorado Lawyer
April 1997
Vol. 26, No. 4 [Page 43]

Specialty Law Columns
Criminal Law Newsletter
Other Bad Act Evidence: How to Avoid the Slings and Arrows
by Edward Pluss

Column Eds.: Robert Pepin and Laura Flenniken of Recht &amp Pepin, P.C., Denver - (303) 573-1900

This newsletter is prepared by the CBA Criminal Law Section This month's article was written by Edward Pluss, a sole practitioner in Denver specializing in criminal defense (303) 329-0900.

It is a prosecutor's job to present evidence at trial to persuade a jury that the defendant is guilty and deserving of his or her just desserts. It is the job of criminal defense lawyers to portray their clients as wrongly accused or at least in the best light possible. One of the ways prosecutors attempt to win this battle is through the admission of "other bad act" evidence or evidence of the defendant's character.

Generally, evidence of a defendant's other crimes, wrongs, bad acts, or character traits is inadmissible, subject to narrow exceptions.1 Evidence of a defendant's other bad acts or character is generally excluded because of the chance that the defendant would be judged guilty because of a perception about his or her character, not because the defendant is believed by the jury to be guilty.2 This area of the law is often misunderstood by prosecutors, defense attorneys, and judges. Often, this evidence is offered without warning, catching the unsuspecting defense attorney by surprise. There are times when the evidence is introduced without either defense attorneys or the court requiring the prosecutor to satisfy the requirements for admission.

The purposes of this article are to help clarify the criteria for the admission of other crimes or bad act evidence and to suggest, from a defense attorney's perspective, what can be done to combat the wrongful admission of this type of evidence.

Res Gestae Versus 404(b) Evidence

One of the exceptions to the general rule that other bad act evidence is inadmissible is the theory of res gestae, or explaining the circumstances surrounding the commission of the crime. A second exception is found in Rule 404(b) of both the federal and state rules of evidence. Rule 404(b) allows that other crimes, wrongs, or bad acts may be admissible for such "legitimate purposes" as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Because there are differing requirements for admission under the theory of res gestae and under Rule 404(b), the criminal defense lawyer must be cognizant of and be able to recognize the differences between the two so as to require the proposed evidence be characterized correctly.

Uncharged bad act evidence concerning a defendant that is admissible because it is part of the res gestae of the crime is commonly confused with 404(b) evidence. Res gestae evidence is evidence of other offenses or acts that is not extrinsic to the offense charged, but rather, is part of the criminal episode or transaction and is admissible to provide the jury with a full and complete understanding of the events surrounding the crime and the context in which it occurred.3

Res gestae evidence is generally linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime or is necessary to complete the story of the crime for the jury.4 This type of evidence is considered part of the res gestae of the offense and is not subject to the general rule that excludes evidence of prior criminality.5 Res gestae evidence includes the circumstances, facts, and declarations that arise from the main event and serve to illustrate its character.6 It includes evidence that is clearly related in both time and nature to the charged offense.7

Rule 404(b) evidence, on the other hand, is evidence of "other crimes, wrongs or bad acts" of a person that is not admitted to prove the character of a person or to show that he or she acted in conformity therewith, but to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Other bad act evidence admissible under 404(b) differs from res gestae evidence in that it generally occurs at different times and under different circumstances from the charged offense.8 Evidence admissible under 404(b) is extrinsic or independent from the charge offense and is the antithesis of res gestae evidence.9

Many times, courts and prosecutors will characterize other act evidence as both res gestae evidence and 404(b) evidence It is clear that other act evidence must be characterized as either one or the other, but it cannot be both. Unfortunately, appellate decisions labeling evidence as either res gestae or 404(b)...