The Use of Evidence of an Accused's Uncharged Misconduct to Prove .%lens Rea The Doctrine That Threatens to Engulf the Character Evidence Prohibition

• Author: by Edward J Imwinkelried
• Pages: 03

1. INTRODUCTION

   The accused is charged with homicide. The indictment alleges that the accused committed the murder m early 1990. During the govern-ment's case-in-chief at trial, the prosecutor calls a witness The wLtness beans describinga killing that the accused supposedly committed in 1989. The defense strenuously objects that the wtness's testimony is "nothing more than blatantly inadmissible evidence of the accused's general bad character." However, at sidebar the prosecutor makes an offer of proof rhat rhe 1989 killing was per-petrated with "emctlr the same modus operandi as the 1990 murder" Given this state of the record, how should the trial judge rule on the defense objection?

   Federal Rule of Evidence 404(b),l which is virtually identical to Military Rule 404(b),2 supplies the answer to the question. On the one hand, the first sentence of Rule 404(b) forbids the judge from admitting the evidence as circumstantial proof of the accused's conduct an the alleged O C C ~ S ~ O ~

   in 1990. That Sentence provides that

   "[elrideme of other crmes, wron~,or acts IS not admissible to prove the character of a person in order to show action in conformity therewith."3 Figure 1 depicts the theory of admissibility banned by the first Sentence of the rule.4

   'Prafeuorofla~,Um~erutgofCabforruaatDavis BA 1967. J D 1060, Lm\enlIy

   of Sa" Fianclieo Former Chair, Evidence 5ecfion Amencan Association of Law Schools The author would like 10 express his mppreciarlon to hlr Joseph de KLloa Clay of lBBl and Yr Daiid Kombluh. Clarraf 1902 Lnirersirg of California ~ ~ D B V L I who served as The author I research ars~stants on fhir article

   >Fed R Erid 104(b)"Millmi) Rule ?Ol(bj reads

   E\idence of other enmei xmng% or acts IS motof B person ~n order lo show that the personIf may, hox,ever be admiriible far other purposes such as proof of mofne opportunity lntenl preparsfinn plan knorledge identiti arabienceofmiitake or accident

   E Imi>inkelned Lncharged \Ilsconduct Evidence 9 2 18 119841 Ved R Evid J04W

   MILITARY LA\$ RE\ IE\V [pol 130

   Figure 1

   PERSOKAL COUFORMITY

   CHARACTER. KITH HIS OR DISPOSITIOB HER CHARACTER OR PROPEKSITT OK THE CH-ARGED

   ClCC.4SIOK

   Thus. the prosecutor cannot offer the xitness's testimoq about The 1989 incident to prove the accused's disposirion toward murder and. in turn, "be the accused's antisocial disposition as evidence that rhe accused committed the alleged 1990 murder

   On the other hand the second hentence of Rule ?O?(b) permits the judge lo admn the eiidence when it 1s relevant on a noncharacter themy That ienteme reads that uncharged misconduct evidence "ma). however. he admlssihle for other purposes siicli a? proof of motive. oppartunlt). Intent. preparation plan. knowledge Identity. or absence of mistake 01 accident In our hypothetical case. The trial judge could aliox the prosecutor to introduce the 1989 incident to establish th? accused's Identity ai the perpetrator of the 1990 kill Ing If the two killings were committed with the identical. unique nmdw operandi. the uncharged incident is lo@cally releranr to prow the accused's identity as the perpetratoi of The charged crime without relying on a forbidden character inference e Hence. the judge could proper11 admit the teatimon) with a limiting mstructmni idem tifying the permisrible and rnpermisnble uses of rhe e~idence

   The admissibility of uncharged misconduct evidence 1s the single most important issue in contemporary criminal evidence law I Thesue has figured mportantly in beveral of the mob1 celebrated criminal mals of ow time Although Wayne \\~illiams was formally charged nith the murden of on15 Kiathaniel Cater and Jimmx Ra)

   n OOte 4 i*

   9 LO 14

   C

   1990) UNCHARGED MISCOSDUCT

   Pak-ne, the Georgia trial judge permitted the prosecutor to introduce evldence about ten other killin@ The national media made the prosecutions hair and fiber e~idence the centerpiece of the trial, but that evidence was merely a means to the end of lyingall twelve kill-ings together Similarly uncharged misconduct evidence was a rilal part of the pro~e~ution'~case against Claus ron Buloiv. the prosecution presented testimony about the accused's affair with Mrs. Isles on the theory that the affair supplied the motive for the accused's attempt to kill his millionairess aife.L'

   The numbers confirm the importance of the issue of uncharged misconduct evidence" Rule 404(b) has generated more published opinmns than any oiher subjection of the Federal Rules'? In many jurisdictions, alleged errors ~n the admission of uncharged miacon-duct evidence are the most common ground for appeal m criminal cases!3 In some jurisdictions. errors in the introduction of uncharged misconduct are the most frequent basis far revenal m cnmmal cases?4

   Recent years have witnessed several frontal assaults an the firs1 prong of the uncharged misconduct doctrine, prohibiting the prosecutor from offering eiidence of an accused's uncharged crimes on a character theory as circurnstantiai proof of conduct Some cam mentatom have argued rhat the datmctmn between character and noncharacter theones of relevance is iliusor).. according to this argu-ment. e\enrhe purportedly noncharacter theones entail assumptions abaut the accused's tendencies and dispositionie Alternatively, other commentators have contended that an accused's uncharged crimes can be so highly probative ewn on a character theory that it would be irra~ional to exclude them.L611n one~unsdiction,prosecutors have

   Iliami L State 261 GP 749 312 5 E 26 10 (19831

   I66 0 28

   Re% blU (19881 (urging recognition of limited ~e).ual offender excceptmn 10 general character midenre pmhlbifion in child sexual abuse pmrecufionr)

   MILIT.4RI LAR REX-IEI\ 1\01 130

   argued that a propusition adopted by the -tal? elpctorate has the effecr of abolishing the general hail on el ~denc? of an acruwd E had characrer"

   To date. the direct attack? on the character etidencr prohihition haw been unsuccessful The American Bar AJubrice Section's iummmee on Rules of CnmEvidencr ~ ~ c ~ n t l ? reaffirmed the distinction berrimcharacter theoriei of logical releian~e'~

   For thrir part. the cnurts d the imitarioii LC overturn ihp character

   Hoae\ei: the adTocatei of the lradirional han on charat e\idence should take little solace from the failure of the dire

   The purpose of rhis article 1s to describe and critique thebe liio 1mes of authorit! The firs1 section of the article discusses one line ~iamel.~the cast Iaa advancing the propoSition that the fint sentence in Rule 10?(bj 1s autamat~allyinapplicabl? wheneier the pmsec~tor offers uncharged misconduct to bupport an ultiniare inference of

   19901 UXCHARGED MISCOBDUCT

   mental intent rather than physical conduct The next section of the article analyzes the second line of authority. That line includes the derisions urging that under the doctrine of objectne chances, the prosecutor routinel> can offer uncharged misconduct on a non-character theon to prove intent Both lines of aurhorit? are spunous, and both represent grave threats LO the continued viability of the character evidence prohibition.

   11. THE DOCTRINE THAT THE CHARACTER EVIDENCE PROHIBITION IS INAPPLICABLE

   WHENTHEPROSECUTOROFFERSTHE ACCUSED'S UNCHARGED MISCONDUCT TO ESTABLISH THE ULTIMATE INFERENCE OF THE ACCUSED'S MENS REA

   The first sentence of Rule 404(b) embodies the character evidence prohibmon. In pertinent parr, the first sentence of Rule 404(b) precludes a prosecutor from introducing evidence of an accused's other crimes "to prove the [accused's bad] character in order to show action in conformitg- thereaith.' On its face, the wording of the rule suggests that the rule comes into play onl? when the prosecutor offers the uncharged misconduct to support an ultimate mference of conduct.2z Suppose that in a aven case, the prosecutor offers testimony about the accused's uncharged misconduct to sup^

   port the ultimate inference that the accused committed the charged offense with the requisite WM rea. Figure 2 depicts the prosecutor's theory af admissibihty

   Figure 2

   ITEM OF INTERMEDIATE ULTIMATE EVIDEXCE ---9 INFERENCE---+INFERENCETHE ACCUSED'S THE ACCUSED'S THE ACCUSED'S UNCHARGED ACT TENDETCY To FORMATION OF THE

   FORM A CERTAIN MENS REA ON THE

   MEZ'S REA CHARGEDnrr4 sinx

   Gwen the aording of the firs sentence Rule ?O?(b). rhe prohibirion

   1s arguably inapplicable whenever the prosec~mr proposes relying on this theor) of admissibilit) The prosecutor will aigae that an in ference of inem rea differs from an inference of action or conduct ji

   The prosecutor's argument E not only plausible. there 1s a aealth of case law embracing the argument z4 Indeed It currently may be the pre\ahng view that the character evidence prohibition codified in Rule 404(b) is inapposite when the proSecutor s ultimate purpose IS proving the accused s m reo.z5 The California equivalent of Rule 404(b) 1s Evidence Code l101(b).z6 The federal Advisory Committee used 5 1101(b) as one of its models in drafting Rule 404(b) z1 Section 1101(bj forbids the prosecution from offering uncharged misconduct evidence to support an ultimate inference of "conduct on a specified occasion In a recent case. the Califorma Supreme Court emphasized that 5 1101(b) forbids the prosecutor from introducing the ac cused's uncharged misconduct "onli '7% hen offered to prove [defendant's] condwf on a specified occasion '''2X In that case the court held that the character evidence prohibition m 5 llOl(b) mas map plicable because '[tjhe prosecutor offered the evidence to prove defendant's state of mind rather than defendant E conduct on any particular occasion Other decisions similari>- have permnted prosecutan to argue that if an accused entertamed the required mew rea during a Similar uncharged mcidenr, "he probably harbor[ed] the same intent

   This doctrine

   at the time of the charged offense "'

   d dangwoua one and is threatening to emasculate rhe character evidence pmhibirion Se\eral CourtsJJ hare izarned that thi? doctrin? has the potenrial...