The Misuse of Rule 404(b) on the Issue of Intent in the Federal Courts

• Publication year: 2022

45 Creighton L. Rev. 215. THE MISUSE OF RULE 404(B) ON THE ISSUE OF INTENT IN THE FEDERAL COURTS

THE MISUSE OF RULE 404(B) ON THE ISSUE OF INTENT IN THE FEDERAL COURTS

DAVID A. SONENSHEIN(fn*)

I. INTRODUCTION

As every Evidence law student knows, Federal Rule of Evidence 404 forbids the prosecution from offering evidence of the defendant's bad acts or traits of bad character as substantive evidence for the purpose of showing the defendant's propensity to commit such acts or to show that he is a person of poor general or specific character.(fn1) Further, the fact finder is forbidden to infer that simply because the defendant has acted badly on an earlier occasion, he committed a similar bad act on the occasion that led to his criminal charge in the case at bar.(fn2) To put it another way, it is a fundament of American law that defendants should be judged for what they have done in the case at issue rather than for what they have done in the past or for their general character.(fn3)

Professor Edward J. Imwinkelried captured the general rule and the underlying dangers when he wrote:

The character evidence prohibition is a settled fixture of the common law of evidence. With some exceptions, there is a general prohibition against treating a person's character or character trait as circumstantial proof of his or her conduct. If a proponent were permitted to use this theory of logical relevance, two significant probative dangers would arise. To begin with, if the jury focused on the question of the type or kind of person a litigant is, the jurors might be inclined to decide the case on an improper basis-the danger that Ben-tham termed "misdecision."(fn4) Thus, if the jury learned that a defendant had committed a long list of violent crimes, at least subconsciously the jurors could be tempted to find him guilty-and thereby protect the public from him-even if he was not guilty of the charged crime.(fn5)

Beyond this basic prohibition, it is equally universally recognized in American law and, specifically, in Federal Rule of Evidence 404(b) (and its state law counterparts) that the prosecution is free to offer other (usually prior in time to the event charged at trial) uncharged (in the present case) acts of the defendant that happen to reflect badly on his character, where, despite the fear of the forbidden propensity inference, such evidence is offered for some other, relevant, non-propensity purpose.(fn6) This uncharged misconduct may be offered in the form of arrests, convictions, or even acts that have never been the subject of a criminal charge.

It is the offer of other similar acts committed by the defendant in order to show his intent in the case at bar that has proved the most troublesome application of Rule 404(b) other acts evidence for two reasons.(fn7) First, inferring intent in the present case from a similar act in a different situation, which perhaps happened decades before, is highly questionable as a matter of both human personality analysis and simple logic.(fn8) Indeed, it could be argued (though not here) that such an inference is so attenuated that it violates the constitutional proscription on impermissible inferences fact finders may make in finding a defendant guilty on all elements of the crime beyond a reasonable doubt.(fn9) Second, though all offers of prior act evidence under Rule 404(b) create the potential for prejudicial misuse by the jury, the offer of the same or a similar act to the one charged at trial presents the greatest prejudice because it makes the propensity inference almost inescapable.(fn10)

Where other acts evidence is offered on most elements of the charged offense other than intent, the evidence may routinely be necessary and probative without being unduly prejudicial. For example, where the defendant claims he was not in the neighborhood where a murder was committed, the government's offer that he had in fact committed an unrelated burglary in that neighborhood at around the same time as the murder would be relevant and not overly prejudi-cial.(fn11) Specifically, it would allow the jury to know both that the accused was in fact in the neighborhood and is a burglar, but it does not lead them to inevitably believe that he is a murderer.(fn12) By contrast, offering an earlier unrelated murder by the defendant who is now charged with murder to show "his intent to murder" in the case at bar is logically and scientifically irrelevant to show such intent.(fn13) Additionally it is logically indistinguishable from showing a propensity to murder (a forbidden evidentiary purpose), which social scientists have shown creates unfair prejudice in the jurors' minds, which no limiting instruction can cure (if not reinforce).(fn14) As one writer has put it,

Courts even go as far as to repeatedly generalize that evidence of "the use of prior drug involvement to show . . . intent in a drug trafficking offense is appropriate." Despite the courts' repetition of this principle, it is fatally flawed; its application almost always violates Rule 404(b). What chain of reasoning can link the prior drug history . . . to the charged crime other than one that infers that the defendant has a drug-related propensity, and that based on this propensity, the jury can disbelieve him when he denies criminal intent as to the latest drug incident? There is no propensity-free chain. The earlier drug use, which is behavioral evidence, can be relevant only if we assume that the defendant's behavior forms an unchanging pattern. In the words of Rule 404(b), the drug history is relevant only because it "prove[s] the character of the defendant and supports the inference that, in the case at issue, the defendant acted consistent [sic] with that character.(fn15)

Indeed, the same is true in the civil context. As Lisa Marshall has pointed out in the context of Title VII cases:

In short, then, when plaintiffs purport to offer evidence of an employer's "motive," they overwhelmingly do so based on the following logic: The employer's prior acts reveal that the employer has some discriminatory mindset; ipso facto, the employer was motivated to discriminate [by that mindset in taking the adverse action]. Nothing more than semantics differentiates this "motive" from character propensity, while the underlying theory of admissibility in no manner complies with Rule 404(b)'s prohibition of prior act evidence "to prove the character of a person in order to show action in conformity therewith."(fn16)

Historically, the interplay of Rules 404(a), 404(b), and 403(fn17) created a rather exclusionary view of the admission of Rule 404(b) evidence, including on the issue of intent.(fn18) In the last fifteen to twenty years, however, many federal courts have reversed their views and now generally take a welcoming or inclusionary approach to admission of prior similar acts for the purpose of showing intent.(fn19) Even more alarming, one federal circuit has taken an extreme view and determined that in cases where the issue of the defendant's intent is not contested, the government is entitled to offer evidence of other similar crimes to prove the general intent of the defendant.(fn20) A number of other federal circuits have taken a slightly less extreme but equally unjustifiable view, favoring admission of similar acts evidence where the defendant enters a not guilty plea to an indictment charging a specific intent crime. These courts rest this admission on the theory that the entry of a plea of not guilty per se, "places the defendant's intent in issue" and permits the government to present evidence of every similar crime with which the defendant has been convicted or even merely charged.(fn21)

This Article argues that too many federal courts have ignored the cogent teaching of both the majority and dissenting opinions in the seminal case of United States v. Beechum,(fn22) social science, Rule 403, the implications of the United States Supreme Court's opinion in Old Chief v. United States,(fn23) and common sense, in the name of simply easing the government's burden in proving criminal cases. I argue for a common sense approach to the application of Rule 404(b) on the issue of intent, which balances the government's legitimate need to prove its case, particularly in the absence of other evidence of contested intent, and the defendant's right to a fair trial untainted by barely veiled and highly prejudicial evidence of propensity.

II. how rule 404 operates

Federal Rule of Evidence 404(b) provides that in criminal cases, evidence of other acts or crimes (uncharged in the present case) attributed to the defendant are inadmissible when offered to show only that the defendant acted in conformity with the character traits suggested by the uncharged acts.(fn24) More simply put, the government is forbidden to offer prior bad acts to show that because the defendant committed those acts in the past, he is more likely to have committed them at the time of the charged offense.(fn25)

Though the first sentence of Rule 404(b) bluntly bars the offer of other acts to show the defendant's propensity to commit such acts, the second sentence of Rule 404(b) clearly permits the government to offer evidence of such acts despite the presence of the inevitable propensity inference.(fn26) According to the Rule, prior acts evidence is admissible where the government can articulate a relevant, non-propensity purpose for...