Federal Evidence Review

In a diversity alienation of affections trial, excluding evidence that the defendant had affairs with other co-workers because this evidence would not logically show the defendant’s intent to alienate the affections of the plaintiff’s husband, as required under applicable state law, and was inadmissible propensity evidence under FRE 404(b) and unfairly prejudicial; case highlights the application of FRE 404(b) in civil diversity actions, in Kebede v. Hilton, 580 F.3d 714 (8th Cir. Sept. 4, 2009) (No. 08-3326)

Although written nearly three decades before the adoption of the FRE, Justice Jackson writing for the majority in Michelson v. United States, 335 U.S. 469, 475–76 (1948) seemed to describe the thinking behind FRE 404’s exclusion of propensity evidence:

“Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”

Michelson v. United States, 335 U.S. 469, 475–76 (1948) (citation omitted) (emphasis added).

However, FRE 404(b) provides an exception that allows other act evidence to be admitted when circumstantially relevant to show “motive, opportunity, intent, preparation, plan, knowledge....” In a recent case, the Eighth Circuit explored the application of the FRE 404(b) exception to other act evidence proffered to show intent in a civil trial proceeding under state statute. The case illustrates how a federal court, in applying FRE 404(b) in a civil diversity case, accounts for the requirements of state law while applying the requirements of a federal procedural rule.

In the case, Kebede who had lived in Minnesota with her husband Christiansen sued Hilton, one of Christiansen’s co-workers (and a South Dakota resident), for alienating the affections of Christensen under South Dakota law. Apparently Hilton carried on an affair with Christensen and upon discovery of the affair, Kebede and Christensen divorced. Prior to the jury trial in the U.S. District Court for South Dakota, the judge granted Hilton’s motion in limine to exclude evidence from Hilton’s deposition “that she had affairs with two co-workers other than Christiansen. The first affair, which occurred prior to her affair with Christiansen, involved a married co-worker. The second affair, which occurred in December 2002 (shortly after Christiansen returned to Minnesota), involved a single co-worker.” The court concluded that this evidence was irrelevant and substantially more prejudicial than probative. After the jury returned a verdict for the defendant, Kebede appealed based solely on the exclusion of the other affairs evidence.

The Eighth Circuit affirmed the exclusion of the other affairs evidence. The circuit noted two grounds for its exclusion. First, it appeared to be offered solely to show propensity and second, it was not relevant to establish the defendant’s intent under the charged state tort. The first ground of propensity required little analysis. The defendant’s affairs with co-workers, concluded the circuit, “tended to show Hilton’s propensities for this type of activity” and accordingly under FRE 404(a) was “not admissible to prove that Hilton had a propensity to have affairs.” Kebede, 580 F.3d at 717.

Since it was excluded propensity evidence, the circuit also noted that it would not be admissible as an exception, set out by FRE 404(b) (allowing propensity evidence to demonstrate the defendant’s intent). To reach this determination, the federal court examined the state law elements of the civil tort at issue, alienation of affections. Under applicable South Dakota law, “[a]lienation of affections is an intentional tort and it was necessary for [the plaintiff] to prove intent.... As the defendant rarely admits the crucial element of intentional wrongful conduct, it must be established by the plaintiff through circumstantial evidence….” Kebede, 580 F.3d at 717 (citing Veeder v. Kennedy, 589 N.W.2d 610, 620 (S.D. 1999) (in state alienation of affections case, whether there were affections in marriage to alienate and whether superior intended to entice employee’s affections away from her spouse were for the jury)).

That fact that intent is essential to the cause of action, however, does not mean that under FRE 404(b) evidence of other affairs are “always relevant,” explained the circuit. The state law cause of action made it clear that other affairs evidence was relevant only when: “(1) the defendant’s affair with his co-worker, which the plaintiff sought to introduce into evidence, occurred prior to the affair with the plaintiff’s spouse-the root of the alienation of affections action; (2) the prior affair lead to the breakup of the co-worker’s marriage; and (3) the defendant, who eventually married his co-worker, was presumably aware that the affair lead to the breakup of his co-worker’s marriage. It could thus rationally be inferred that the defendant entered into the subsequent affair with the same goal.” Kebede, 580 F.3d at 717 (citing Veeder v. Kennedy, 589 N.W.2d 610, 620 (S.D. 1999)).

With the applicable cause of action in mind, the circuit’s path was clear. It was not erroneous to exclude the other affairs evidence in the defendant’s case because:

“Kebede points to no evidence in the record that Hilton either alienated the affections of the other co-workers with whom she had affairs or was aware that her co-workers’ affections had been alienated. Evidence of Hilton’s other affairs would only prove intent if it were shown that she knew, based on those affairs, that alienation was the likely result of her actions with Christiansen. In the absence of such proof, evidence of Hilton’s other affairs would have only been relevant to prove that she had a propensity for having affairs, which is a prohibited purpose under Rule 404(a). Even assuming that evidence of Hilton’s other affairs was relevant, without additional evidence establishing her intent, evidence of the affairs would be unfairly prejudicial and could be ruled inadmissible on that ground. On this record, the district court did not abuse its discretion in excluding evidence of Hilton’s affairs with two co-workers other than Christiansen.”

Kebede, 580 F.3d at 717-18 (citation and footnote omitted).

Even had the court erred in omitting the other act evidence, the circuit noted that it was not prejudicial and therefore would be no ground for relief. This was because:

“[a] close review of the trial transcript reveals considerable testimony from multiple witnesses suggesting that there was very little affection and, in fact, a fair amount of emotional, verbal, and physical abuse by the plaintiff, Kebede, towards her husband. Because the record reflects that the state of the marriage was a much greater point of contention in this particular case, we cannot see how introducing evidence of the other affairs would have accomplished much more than character assassination. The evidence of the other affairs was not at the heart of the matter in this case; therefore, the district court was well within his discretion to exclude the evidence as overly prejudicial.”

Kebede, 580 F.3d at 718 n.4.

The Eight Circuit’s careful dissection of the admissibility of the other affairs evidence under FRE 404(a) and FRE 404(b) closely reflects the assessment by another circuit about the admissibility of similar evidence in a sexual harassment action. See Wilson v. Muckala, 303 F.3d 1207, 1217 (10th Cir. 2002) (evidence of alleged instances of past sexual harassment by doctor was not admissible other acts evidence in sexual harassment suit against hospital or doctor because plaintiff nurse did not allege that hospital had notice of alleged prior incidents, so as to make such evidence relevant to prove hospital’s discriminatory intent, nor was there a discriminatory intent element in claims brought against the doctor and the alleged prior incidents occurred in places outside hospital, so that they were not relevant to establish hostile work environment claim).

As the Kebede case demonstrates, the federal court applied the FRE to the diversity action. However, the analysis of whether to admit the other act evidence under FRE 404(b) required an analysis of the alleged state tort. Under this approach, an assessment could be made on whether to admit the proffered evidence.