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Challenging “Other Acts” Evidence under Williams

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by: Ajohnson • June 3, 2015 • no comments

I would not hire a petsitter with a history of animal abuse convictions. Why not? The convictions persuade me that the person might have an undesirable character trait that could lead them to abuse my pet. I could be wrong, but the convictions make hiring the person more risky – enough so, in fact, to determine my decision. This kind of reasoning seems natural in daily life, but it is controversial in the courtroom.

Background

Historically, the common law precluded the admission of evidence of a criminal defendant’s “other crimes, wrongs, or acts” to prove that the defendant has a character trait that might have led him to commit the charged crime. Our legal system has traditionally forbidden the use of “other acts” evidence to prove a criminal defendant’s propensity because it presents too grave a risk of unfair prejudice, whatever its probative value might be.[1]

In Oregon, OEC 404(3) codifies the common-law rule:

“(3) Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Since its enactment with the rest of the evidence code in 1981, OEC 404(3) has prohibited the admission of “other acts” evidence to prove propensity. But in 1997, the legislature enacted OEC 404(4):

“(4) In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
“(a) [OEC 406 through 412] and, to the extent required by the United States Constitution or the Oregon Constitution, [OEC 403];
“(b) The rules of evidence relating to privilege and hearsay;
“(c) The Oregon Constitution; and
“(d) The United States Constitution.”

(Emphasis added). By its terms, OEC 404(4) provides that evidence of a criminal defendant’s other crimes, wrongs or acts is admissible “if relevant,” regardless of OEC 404(3) and the common-law rule it codifies. It thus seems plain that the legislature’s intent was for OEC 404(4) to supersede OEC 404(3), and thereby to make evidence of a criminal defendant’s past conduct admissible to prove propensity.

Nevertheless, for 18 years the Oregon Court of Appeals avoided confronting the apparent conflict between OEC 404(3) and OEC 404(4). It did so by assuming that “other acts” evidence which would prove only propensity would not be “relevant” as that term is used in OEC 404(4). If “other acts” evidence offered to prove only propensity was not “relevant,” the court reasoned, then OEC 404(4) would not make it admissible.[2] (OEC 404(4) did not make “other acts” evidence admissible to prove propensity because such evidence is not “relevant” as that term is used in OEC 404(4)). By limiting OEC 404(4) to evidence with non-propensity relevance, the court could continue to maintain that OEC 404(3) precludes the admission of “other acts” evidence to prove propensity, despite OEC 404(4).

Changes under State v. Williams

There are several changes to the admissibility of “other acts” evidence that counsel needs to be aware of.

OEC 404(3) no longer bars the admission of evidence of “other acts” evidence to prove propensity.

This year, the Oregon Supreme Court addressed the issue. In State v. Williams, the court held that OEC 404(4) and OEC 404(3) are in conflict, and that OEC 404(4) supersedes OEC 404(3).[3] In doing so, the court acknowledged that “other acts” evidence which shows only the defendant’s propensity to commit the crime is relevant.[4] Because it is relevant, OEC 404(4) makes it admissible, unless it is subject to exclusion under the other authorities listed by the rule which do not include OEC 404(3). Accordingly, OEC 404(3) no longer limits or precludes the admission of “other acts” evidence to prove a criminal defendant’s propensity to commit the charged crime.

Instead, due process and OEC 403 govern the admission of “other acts” evidence.

This is another development to note. Fortunately, it does not mean the trial courts have carte blanche to admit “other acts” evidence to prove our clients’ criminal propensities. Having held that OEC 404(4) supersedes OEC 404(3), the court turned to a second question: “Whether the Due Process Clause [of the Fourteenth Amendment to the United States Constitution] requires the application of OEC 403.”[5] The court’s analysis of that question provides us with new authority for the exclusion of “other acts” evidence.

First, the court noted that “historical practice” is “the primary guide for determining whether an evidentiary rule is so fundamental as to be embodied in the federal constitution.”[6] Having examined the historical practice regarding the admission of “other acts” evidence to prove propensity, the court made the following remark:

“If this were a case in which defendant had been charged with crimes other than child sexual abuse, we might be persuaded that due process * * * not only requires the application of OEC 403, but also precludes the admission of ‘other acts’ evidence to prove propensity.[7]

The court thus recognized that, outside the child sexual abuse context, the historical practice of prohibiting the admission of “other acts” evidence to prove propensity might be so ubiquitous as to be incorporated by due process. In other words, even though OEC 404(3) no longer prohibits the admission of “other acts” evidence to prove propensity, due process might do exactly the same thing.

Regrettably, the court concluded the historical practice was “not as clear” with regard to child sexual abuse cases.[8] In particular, the court stated:

“‘the history of evidentiary rules regarding a criminal defendant’s sexual propensities is ambiguous at best, particularly with regard to sexual abuse of children.’”[9]

Because the defendant in Williams was charged only with child sexual abuse, the court returned to the question of whether the application of OEC 403 is a due process prerequisite to the admission of “other acts” evidence.

In that regard, the court considered “the principles that animate the Due Process Clause” and noted, “the admission of evidence that is so extremely unfair that it violates ‘fundamental conceptions of justice’ violates the Due Process Clause.”10[10] Interestingly, the court identified the propensity inference itself – “generalizing a defendant’s earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged” – as a form of unfair prejudice caused by “other acts” evidence.[11]

Ultimately, the court concluded that the risk of unfair prejudice presented by “other acts” evidence is so great that application of the OEC 403 balancing test is a due process prerequisite to its admission:

“In our view, the only way that a court can ensure that the admission of ‘other acts’ evidence is not unfairly prejudicial and a violation of ‘fundamental concepts of justice’ is to conduct OEC 403 balancing. We therefore hold that that balancing is required by the Due Process Clause. Even if due process does not categorically prohibit the admission of ‘other acts’ evidence to prove propensity in prosecutions for child sexual abuse, it at least requires that, on request, trial courts determine whether the probative value of the evidence is outweighed by the risk of unfair prejudice.”[12]

Thus, under Williams, due process requires a trial court to apply OEC 403’s balancing test before admitting “other acts” evidence, regardless of the purpose for which it is offered.[13]

To recap, Williams does three important things. First, it holds that OEC 404(4) supersedes OEC 404(3) with regard to evidence of a criminal defendant’s other crimes, wrongs, or acts. Under OEC 404(4), OEC 404(3) does not preclude the admission of relevant “other acts” evidence, even if the evidence is relevant only to prove the defendant’s propensity.[14]

Second, Williams conspicuously suggests that, with the possible exception of child sexual abuse cases, the admission of “other acts” evidence to prove propensity would violate due process.[15]

Third, Williams holds that the admission of “other acts” evidence violates due process unless the evidence is subjected to the balancing test provided by OEC 403.[16]

Practice Notes

Counsel should argue that the Due Process Clause requires the court to apply the OEC 403 balancing test and exclude “other acts” evidence that fails that test.

First and foremost, after Williams it is essential for trial counsel to object to the admission of “other acts” evidence under OEC 403 and the Due Process Clause, rather than the common law or OEC 404(3). Counsel should argue that due process requires exclusion because the evidence’s probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and undue delay.

In support of that argument, counsel should explain in as much detail as possible how the evidence will cause unfair prejudice. In that regard, Williams offers several examples of the unfairness that the common-law rule was meant to prevent.[17] For instance, “other acts” evidence tempts the jury to find the defendant guilty in order to punish the defendant for the other acts. Similarly, “other acts” evidence tempts the jury to regard the defendant as a “wretch” who does not deserve a fair trial. Moreover, the evidence forces the defendant to defend himself against the allegation that he committed the other acts, which is both unfair to the defendant and causes undue delay (a “trial-within-a-trial”).[18]

But the most important source of unfair prejudice caused by “other acts” evidence is the propensity inference itself. Although the court recognized that “other acts” evidence is logically relevant even if it shows only propensity, the risk that the jury will draw that propensity inference was identified by the court as the primary form of unfair prejudice flowing from the admission of the “other acts” evidence.[19]

Importantly, each of those risks is present whenever the court admits “other acts” evidence, regardless of whether it is offered to show propensity or for some other purpose. Williams holds that OEC 403 balancing is a due process prerequisite to admission of “other acts” evidence because of the risk of unfair prejudice, and that holding is not limited to evidence offered only to prove propensity.[20]

On the other side of the scales, counsel should explain why the probative value of the evidence is minimal. For example, counsel should highlight the availability of other evidence that proves the same fact.21[21]

In addition, if the evidence is offered only to show propensity, counsel should argue that the evidence is only minimally probative because the propensity inference is weak. In that regard, counsel should argue, as applicable, that (1) the state has not proven defendant even committed the other acts; (2) defendant’s other acts do not show he has a particular character trait; and (3) even if they do show defendant has a particular character trait, having that character trait does not make defendant more likely to have committed the charged crime.

More commonly, the prosecutor will claim that the “other acts” evidence proves something other than propensity. In that case, counsel can still challenge the evidence’s probative value using the pre-existing case law on the particular theory of relevance at issue. For example, if the state offers the evidence to show intent, counsel can argue that the evidence is not probative of intent under the “doctrine of chances” rationale.[22] And if the court is tempted to admit “other acts” evidence under the “doctrine of chances,” counsel should alert the court to Leistiko’s procedural prerequisites to its admission.[23]

Finally, the state may argue that Williams’s due process holding applies only to “other acts” evidence offered to prove propensity and not to “other acts” evidence that proves something more legitimate, such as intent or modus operandi. But in describing what application of OEC 403 to “other acts” evidence might look like, the court identified an OEC 403 “spectrum” that includes, at one end, evidence offered for a non-propensity purpose.[24] The court thus appears to contemplate that application of OEC 403 is a due process prerequisite to the admission of “other acts” evidence, regardless of the purpose for which it is offered. Nevertheless, counsel should be prepared for the prosecution to argue for a narrower reading.

Counsel should argue that the admission of “other acts” evidence to prove propensity violates the Due Process Clause.

As noted, the prosecutor will typically claim to be offering “other acts” evidence for a non-propensity purpose. Counsel should argue that the evidence is not relevant for that purpose, and that admitting it would mean admitting it only to prove propensity. Counsel should then cite Williams’s discussion of “historical practice” for the claim that the common-law exclusion of “other acts” evidence to prove propensity is so ubiquitous as to be incorporated into the requirements of due process. Under Williams, whether the admission of “other acts” evidence violates due process depends on a case-by-case application of OEC 403. But Williams also suggests that, at least outside the child sexual abuse context, due process categorically prohibits the admission of “other acts” evidence when it is only probative of the defendant’s criminal propensity.[25]

Endnotes

  1. ↑ See State v. Williams, 357 Or 1, 7-9, 346 P3d 455 (2015) (discussing the history of the common-law rule).
  2. ↑ See, e.g., State v. Dunn, 160 Or App 422, 430, 981 P2d 809 (1999).
  3. ↑ 357 Or at 15.
  4. ↑ Id. at 14.
  5. ↑ Id. at 16.
  6. ↑ Id. at 17 (citing Montana v. Egelhoff, 518 US 37, 43-44, 116 S Ct 2013, 135 L Ed 2d 361 (1996)).
  7. ↑ Id.
  8. ↑ Id.
  9. ↑ Id. at 17 n 16 (quoting United States v. Castillo, 140 F3d 874, 881 (10th Cir 1998) and United States v. LeMay, 260 F3d 1018, 1026 (9th Cir 2001)).
  10. ↑ Id. at 18 (quoting United States v. Lovasco, 431 US 783, 790, 97 S Ct 2044, 52 L Ed 2d 752 (1977)).
  11. ↑ Id. (quoting Old Chief v. United States, 519 US 172, 180, 117 S Ct 644, 136 L Ed 2d 574 (1997)).
  12. ↑ Id. at 18-19.
  13. ↑ Id.
  14. ↑ Id. at 15.
  15. ↑ Id. at 17.
  16. ↑ Id. at 18-19.
  17. ↑ See id. at 8-9, 18.
  18. ↑ See Boyd v. United States, 142 US 450, 458, 12 S Ct 292, 35 L Ed 1077 (1892); State v. Baker, 23 Or 441, 442-43, 32 P 161 (1893).
  19. ↑ 357 Or at 18 (citing Old Chief, 519 US at 180).
  20. ↑ Id. at 18-19.
  21. ↑ See id. at 22 n 21 (“In conducting the balancing inquiry * * *, a trial court may consider whether other evidence that does not carry the same risk of unfair prejudice is available * * *”).
  22. ↑ See State v. Leistiko, 352 Or 172, 182-83, 282 P3d 857 (2012) (explaining how “other acts” evidence may be probative of mens rea under the “doctrine of chances” without relying on a propensity inference).
  23. ↑ See id. at 185 (stating prerequisites).
  24. ↑ 357 Or at 19-20.
  25. ↑ 357 Or at 17.


OCDLA Member Andy Robinson is a Deputy Public Defender in the Criminal Appellate Section, Office of Public Defense Services, Salem. This article originally appeared in the June/July 2015 issue of The Oregon Defense Attorney journal.

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