Prior Bad Acts Or Other Crimes Evidence

• Jurisdiction: Maryland

VI. Prior bad acts or other crimes evidence

A. General rule

Md. Rule 5-404(b) provides that evidence of (1) prior convictions; (2) other crimes evidence; and (3) prior bad acts are generally not admissible to prove conduct consistent with the crime for which the defendant is charged. See Hyman v. State, 158 Md. App. 618, 625 (2004). Such evidence may infringe on the right to a fair trial. Merzbacher v. State, 346 Md. 391, 407 (1997).

In Odum v. State, 412 Md. 593, 611-12 (2010), the Court of Appeals held that, when crimes are so connected and blended in time or circumstances, that they cannot be explained without evidence of other crimes, admissibility of those crimes is not governed by Md. Rule 5-404(b).

Evidence of a defendant's prior crimes, other crimes evidence, and prior bad acts may not be introduced to prove the offense for which the defendant is on trial. For example, a prosecutor's question to the defendant about whether the defendant used or uses drugs is ordinarily prohibited in a trial in which the defendant is charged with drug-related offenses. Neam v. State, 14 Md. App. 180, 188-89 (1972). However, the question is not improper when the trial court has been advised by both the prosecutor and defense counsel that the defendant's answer will be "no." Holmes v. State, 119 Md. App. 518, 530 (1998).

If the defendant believes there are prior bad acts and/or other crimes evidence that the State may attempt to introduce, the defendant should file a motion in limine, requesting that the trial court preclude the State from introducing such evidence, and requesting a pre-trial hearing. If the motion in limine is denied, and the evidence is introduced, the defendant should object to the evidence and make a motion for a mistrial. An objection to a question eliciting such evidence must be made when the question is asked. If objectionable material comes in unexpectedly during an answer, the defendant should make a motion to strike. Md. Rule 8-131(a). Failure to object precludes appellate review. Holmes, 119 Md. App. at 523.

If a motion for a mistrial is denied, and if the defendant is found guilty, the defendant should make a 10-day motion for a new trial. If the motion for a new trial is denied, the defendant may raise the issue on appeal.

The use of other crimes evidence by the defendant "as a shield" has been referred to as "reverse other crimes evidence" and the "standard of admissibility when a criminal defendant offers similar acts evidence as a...