Objecting to Other Bad Acts under 404(4)

This wikilog article is a draft, it was not published yet.

by: Abassos • January 17, 2011 • no comments

Last week, OPDS attorney Marc Brown came out to the Washington County office of MPD to help us brainstorm how to push back against the rash of prejudicial, barely relevant bad act evidence coming in pursuant to OEC 404. Jesse Merrithew, an MPD attorney who was already leading the aforementioned fight, took notes and put together this list of objections for you to use:

I. Statute

A. Not relevant under OEC 401

1. OEC 401defines "relevant evidence" as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
2. However, OEC 404(3) seems to be relevancy plus something else, which may be what is meant by "logical relevance." Under 404(3) the evidence must be logically relevant.

B. Doesn't meet the Johnson test of "logical relevancy."

1. Argue that this means something more than "relevant" ("relevant plus" or adequate similarity).
2. The Johnson test: "[A]ny similarity in the circumstances increases the probative value of the prior crime evidence and enhances the argument for admissibility under OEC 404(3). Likewise, the timing of uncharged crimes vis-à-vis the charged crime and the number of instances that are shown may affect the question of admissibility. No categorical rule exists, but timing, repetition, and similarity of both the act and the surrounding circumstances all are important considerations." State v. Johnson, 340 Or 319, 340, 131 P3d 173 (2006).
3. Johnson does not provide a bright line rule. Each case must be analyzed on its own facts. See State v. Momeni, 234 Or App 193, 204, 227 P3d 1230 (2010) (J Wollheim, dissenting) ("But it is a truism that Johnson applies only to the specific facts of that case. Johnson did not state a 'bright line' rule, and the line between inadmissible character evidence and admissible evidence is narrow. That distinction depends on the specific facts of each case.").

C. It is just propensity evidence, therefore cannot get it in under 404(4), must meet the test laid out in 404(3). State v. Dibala, 161 Or App 99, 984 P.2d 302 (1999) (OEC 404(4) "does not change the traditional standards for determining the relevance of evidence that might tend to prove the defendant's propensity to commit the crime.").

1. Note: This is a questionable proposition for two reasons. First, the courts have held on numerous occasions that OEC 404(3) does not require OEC 403 balancing. Second, Dibala holds that OEC 404(4) did not eviscerate OEC 404(3) but not that evidence must be subjected to OEC 404(3) and therefore OEC 403.
2. On the other hand, if all relevant evidence comes in unless as provided by, among other provisions, OEC 403, then it would follow that once a court determines that propensity evidence is "logically relevant" under OEC 404(3) then it comes in except as provided by OEC 403.

D. The statute (404(4), not 404(3)) requires balancing. Contemplates that some evidence might violate the constitution, therefore imposes a duty on trial courts to determine whether the evidence might violate the constitution. The only way to do that is through a balancing test (see due process section below).

II. Constitution

A. Due Process.

1. It would be fundamentally unfair to allow its interjection.
2. "In construing [the 14th] Amendment, [the United States Supreme Court has] held that it imposes minimum standards of fairness on the States, and requires state criminal trials to provide defendants with protections 'implicit in the concept of ordered liberty.'" Danforth v. Minnesota, 552 US 264, 269-70, 128 S Ct 1029, 1034, 169 L Ed 2d 859 (2008) (quoting Palko v. Connecticut, 302 US 319, 325, 58 S Ct 149, 82 L Ed 288 (1937)).
3. The Fourteenth Amendment "is the source of [the United States Supreme] Court's power to decide whether a defendant in a state proceeding received a fair trial- i.e., whether his deprivation of liberty was 'without due process of law.'" Danforth, 552 US at 269; see also, e.g., Strickland v. Washington, 466 US 668, 684, 104 S Ct 2052, 80 L Ed 2d 674 (1984) ("The Constitution guarantees a fair trial through the Due Process Clauses").
4. The due process guarantee restricts applications of a state's evidence rules that would violate a criminal defendant's right to a fair trial. Green v. Georgia, 442 US 95, 97, 99 S Ct 2150, 60 L Ed 2d 738 (1979) ("Regardless of whether the proffered testimony comes within Georgia's hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment."); Chambers v. Mississippi, 410 US 284, 285, 93 S Ct 1038, 35 L Ed 2d 297 (1973) (application of the state's evidence rule violated the petitioner's right to a fair trial and thus was not "in accord with principles of due process under the Fourteenth Amendment")
5. "In determining whether a state rule violates due process, the United States Supreme Court has stated that the question is whether the rule 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Patterson v. New York, 432 US 197, 201-202, 97 S Ct 2319, 53 L Ed 2d 281 (1977). According to the Supreme Court, it is normally 'within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, and [the state's] decision in this regard is not subject to proscription under the Due Process Clause.' Id. (internal quotation marks omitted). State v. Moore/Coen, __ Or __, __, __ P3d __ (December 16, 2010).
6. The Oregon Court of Appeals has indicated that due process considerations must be taken into account when determining whether to admit evidence pursuant to OEC 404. State v. Wyant, 217 Or App 199, 206, 175 P3d 988 (2007), rev den, 344 Or 558 ("Under OEC 404(4), the trial court was authorized to perform a balancing analysis and to admit some of the state's evidence and exclude other evidence offered by the state only if such exclusion was required by the Due Process Clause.").

**Note: The Oregon courts have yet to hold in any particular case that the admission of this type of evidence violates Due Process. That is, in part, because the bar is so high: fundamental fairness. These types of claims are typically successful only when the defendant can claim that a particular problem threatens the entire integrity of the trial process. E.g., the lawyer who represented the defendant was conflicted, therefore every decision is questionable-this is a denial of due process, not just IAC; a defendant is incompetent to stand trial, that creates a fundamental breakdown b/c he can't rationally exercise any of his rights-denial of due process. In order to have a chance at being successful, you should point out to the court as many of the following problems you can. Any one of them standing alone is probably insufficient to win the day, but the combination may result in a successful due process claim.

B. Confrontation

1. Are the witnesses here? Do they remember what happened such that there is an adequate opportunity to cross-examine?
2. Probably a difficult argument to make because both the state and federal confrontation clauses guarantee an opportunity to cross-examine. See State v. Sullivan, 217 Or App 208, 213, 174 P3d 1095 (2007), rev den, 344 Or 539 (2008) ("In this case, defendant was given a full and fair opportunity to cross-examine the victim about her testimony and about her lack of memory about certain specifics and then to argue that, because of the nature of her answers, "scant weight" should be given to the testimony.").

C. Speedy trial

1. If the other acts are uncharged conduct, argue that the same principles apply to a speedy trial
2. Analyze whether any of the arguments you would make to show prejudicial delay are available.
   • Favorable defense witnesses no longer available.
   • Memories of available witnesses are no longer clear
   • Evidence of uncharged act is unavailable for testing.
3. Although defendant is not being charged with the other act, defendant must still have the ability to refute the testimony of the witness.

D. Double jeopardy

1. If the other act is one in which defendant had been previously convicted, make a standard double jeopardy argument (that defendant is being tried for the same crime)
2. Although this argument has not worked for sentence enhancement based on prior criminal activity, it may have some traction in a case where the evidence of the present charge is slim and the evidence of other crimes is overwhelming
3. Generally, think about the principles underlying the double jeopardy protection and apply to your case.

E. 4th and 5th Amendment (and Article I, Section 9 and 12) challenges to the collection of the evidence.

F. Protection against self-incrimination

1. Defendant has a constitutional right not to testify at his trial.
2. Think about severance arguments and use them in this context
3. Defendant would testify about the other acts but does not wish to waive his right to remain silent on the current offense.

III. Other Tactics

A. Stipulate to the element(s) the state is attempting to prove through the introduction of OEC 404(3) evidence.

B. However, the state is not required to agree to a stipulation. State v. Ehrensing, 232 Or App 511, fn 5, 223 P3d 1060 (2009) ("; State .v Hambrick, 189 Or App 310, 312-13, 75 P3d 462 (2003).

IV. When all else fails, use it against them:

"they spent the last three days telling you about things that happened 10 years ago, why? Because they can't prove this happened."