Prove it! Musings on advocacy, evidence, and the problems of proof at trial – Admissibility of prior bad acts under NCRE 404(b): Alchemy or Analysis?
Admissibility of prior bad acts under NCRE 404(b): Alchemy or Analysis? It happens all the time. Defense counsel in a criminal case works hard to avoid opening the door to her client’s character. The facts of the case may be bad enough, but when the prosecutor gets to ladle a generous helping of bad character evidence on top, things go from bad to worse.
It happens all the time. Defense counsel in a criminal case works hard to avoid opening the door to her client’s character. The facts of the case may be bad enough, but when the prosecutor gets to ladle a generous helping of bad character evidence on top, things go from bad to worse. But keeping the character door shut does not mean the jury will not hear about the client’s less than stellar background. That’s where NCRE 404(b), the rule that admits prior bad acts and uncharged misconduct to prove something other than a trait of character and the propensity to behave consistent with that trait of character, comes in. When the prosecutor says, “Your Honor, this evidence is not offered to prove the defendant’s character; it is offered to prove his motive, intent, plan, scheme, and/or identity,” the door the defense counsel has so carefully locked and bolted seems to fall off its hinges. Uttering the magic words of “intent, motive, plan, scheme” turns otherwise inadmissible facts into powerful and persuasive evidence of the defendant’s guilt.
That was the situation in the recent case of State v. Brown, 710 S.E.2d 265 (N.C. Ct. App. 2011), aff’d per curiam, 722 S.E.2d 508 (2012), where the defendant’s possession of pornographic material involving incestuous relationships was admitted to prove his “motive and intent” in raping his minor daughter and to prove the “purpose” element of a charge of indecent liberties with a minor.
The facts are awful and I will not go into the details here. If you are that interested you can read the court’s opinion, and then take a shower. Suffice it to say, Henry Brown was indicted on one count of indecent liberties with a child, his then 6 year-old daughter, and one count of first-degree sex offense (rape) of the same child.
Upon learning of the child’s account of sexual contact with her father, a social worker and a detective interviewed the Browns and received permission to search their home. Hidden between the mattress and the box springs in the master bedroom was “Family Letters,” an “erotic publication containing anonymous ‘letters’ purporting to describe the correspondents’ sexual experiences with other family members.” Id. at 267. Over Brown’s objection, the trial court admitted “Family Letters” under NCRE 404(b) to prove Brown’s motive and intent to commit the charged offenses. Furthermore, the court found the probative value of the book was not substantially outweighed by the danger that the jury would misuse the book as evidence of the defendant’s propensity to rape his daughter. To minimize the danger the jury would misuse the evidence for the forbidden propensity purpose, the trial judge instructed the jury that “if you find the testimony about [Family Letters] to [be] credible, you may consider that only if you find that it bears upon [Brown’s] motive or intent to commit the charged offenses and for no other purpose than that.” Id. at 273. The court did not instruct the jury on how to determine whether “Family Letters” had any bearing on Brown’s motive and intent.
In a 2-1 decision the Court of Appeals affirmed the trial court and noted that the evidence was also admissible under NCRE 404(b) to prove the “purpose” element of the indecent liberties charge. The Supreme Court granted certiorari and affirmed per curiam.
Even second-year law students know that Rule 404(b) is a rule of inclusion and that uncharged misconduct is admissible for relevant purposes other than propensity, subject to the balancing test of Rule 403. At least I hope they know that. I know I have tried to get that across to them. They also know that motive and intent are proper purposes under Rule 404(b). But I digress. What many law students and lawyers do not fully understand (but see, Judge Robert Hunter, Jr., who dissented at the Court of Appeals), is that Rule 404(b) admits uncharged misconduct to prove a proper non-propensity purpose only if the chain of logical inferences between the item of evidence and the proper non-propensity purpose does not require an adverse character inference in order for the item of evidence to have “any tendency” to make the proper non-propensity purpose more likely.
To be fair, the Court of Appeals noted this requirement and correctly identified motive and intent as proper non-propensity purposes under Rule 404(b). The court found it reasonable to infer “incestuous desire” from Brown’s mere possession of “Family Letters” and from that desire of an incestuous relationship to infer a motive and intent to actually engage in an incestuous relationship with his daughter. Id at 271. At first blush, the logic seems sound. But didn’t the detective who found the material possess “Family Letters?” Didn’t the prosecutor possess it? Obviously, the judges on the Court of Appeals and the Justices of the North Carolina Supreme Court possessed “Family Letters” in the course of their consideration of this case. Can we infer that from their mere possession of the material they, too, had an “incestuous desire?” No one would suggest any such thing. In fact, disgust, rather than desire, would be a more accurate inference. And therein lies the problem with leaping from mere possession to desire to motive to conduct and claiming that Rule 404(b) is satisfied.
Only if we know why Brown possessed “Family Letters” can we connect the logical dots from his possession of the materials to his desire to his motive to his conduct. If, for example, Brown possessed the item as part of a graduate thesis on divergent patterns of human sexual behavior, like a judge who possessed the same material to assess its admissibility at trial, no one would suggest that it logically infers an “incestuous desire.” But, if Brown is the sort of person who is a sexual pervert (a bad character trait), then his possession of material portraying sexual deviant behavior may logically infer that he had the desire to engage in such behavior himself. But it is the underlying character trait of sexual perversion or deviance that allows us to make the logical inference from mere possession to desire and from desire to motive/intent. In other words, the chain of logic required to make this evidence relevant for a permissible purpose works only if it goes through an adverse character trait. Rule 404(b) specifically forbids this sort of reasoning in order to reach a legitimate use.
The Court of Appeals tried to explain the logical connection between possession and motive by analogizing the motive in this case to the motive to commit financial crimes. That analogy does not work. If Bubba is tried for murdering Uncle Henry, the fact that Bubba was the beneficiary of the life insurance policy explains why he would commit such an act: with Uncle Henry dead, he gets the money. This allows us to reason from a situation, circumstance, or condition that is unique to this defendant (beneficiary of a life insurance policy) and provides an explanation for his action (killing Uncle Henry). We call that explanation his motive and logically reason that one with a motive to kill Uncle Henry is more likely to actually be the killer than one who does not have a motive. In the murder case, we would reason that Bubba, as the beneficiary of a life insurance policy, will get money when the insured dies; one who knows he will get money when the insured dies is more likely to want the person to die than one who would not get money upon the insured’s death; one who wants the insured to die is more likely to kill the insured than one who does not want the insured to die; Bubba killed Uncle Henry.
While this chain of inferences proceeds from Bubba’s knowledge of his status as beneficiary of Uncle Henry’s life insurance policy to his conduct in killing Uncle Henry, it does not require us to infer or speculate about any aspect of Bubba’s character. Bubba’s motive to kill Uncle Henry arises because we understand that one who can gain money if a certain condition exists is more likely to desire the occurrence of that condition than one who would not gain money from the existence of the condition. Of course, it does not mean that one who has a motive is the killer; it means only that in our human experience one who has a motive is more likely to be the killer than one who does not have a motive.
Possessing “Family Letters” does not explain why Brown would rape his daughter in the same way that being the beneficiary of the life insurance policy explains why Bubba would kill Uncle Henry. Logic does not tell us that one who possesses “Family Letters” is more likely to desire an incestuous relationship than one who does not possess such material. The inference of desire from possession only arises if the possessor has some sort of character trait that explains why the desire for an incestuous relationship is more likely to arise from possession in this person but not in another person. The necessity of the character trait to establish the logical link between mere possession and a desire to engage in incestuous relationships is what distinguishes this evidence from other motive/intent evidence routinely admitted under Rule 404(b).
Neither the prosecutor at trial, the trial judge in his instructions to the jury, the lawyer representing the State before the Court of Appeals, the majority of the Court of Appeals, the lawyer representing the State before the Supreme Court, nor the Supreme Court itself articulated a logical chain of inferences that connected Brown’s mere possession of “Family Letters” to his motive/intent to commit the crimes charged that did not implicitly require an adverse character inference. In this case, the magic words of “motive” and “intent,” like the medieval sorcerer’s alchemy, turned lead into gold.
Rule 404(b) may well be the bane of the defense lawyer’s existence. In both the State and Federal systems, the courts are inclined to identify a permitted purpose and cite a case that holds the rule as one of inclusion and then admit the evidence. While the rule may well be one of inclusion, it admits evidence only if the logical chain of inferences necessary to establish its relevancy for the permitted purpose does not implicate an adverse character inference. Brown teaches that at both the trial and appellate levels, our courts are not inclined to go beyond the magic words and examine the logic necessary to connect the item of evidence with the permitted purpose. But hope is not lost! There will be many more opportunities for defense counsel, trial judges, prosecutors, and appellate judges to consider whether alchemy or logic determines whether a proffered item of evidence truly has any tendency to make the existence of a permissible 404(b) use more or less likely without going through an adverse character inference.