Federal Evidence Review

The Cases

During the seven days between March 2nd and 9th, the circuits issued six reported cases involving FRE 404(b). The week provides a snapshot on this common form of evidence. Of these, five were criminal appeals and one a civil one.

For the six cases reported between March 2nd and 9th, three affirmed the admission of the other act evidence as appropriate. Two noted that even had admission been improper, the error was harmless. One, while making reference to FRE 404 simply cited it as an example of the familiarity a trial judge would have in protecting a party from unfair prejudice in the admission of other act evidence. Of the five criminal cases, two involved drug transactions, and one each involved child pornography, financial fraud, and arson. The sole civil case was a medical malpractice action under Wyoming law.

The cases in the survey include:

• Willis v. Bender, __ F.3d __ (10th Cir. March 3, 2010) (In civil trial against surgeon for lack of informed consent and medical malpractice, circuit notes difficulty likely in implementation of the forum state law regarding informed consent: “a patient will seek to prove the falsity of a physician’s statements with the use of ‘prior bad act’ evidence normally excluded under Rule 404(b) of the Federal Rules of Evidence. For example, a patient may allege his doctor lied to him about his competency to perform a certain procedure and seek to prove it by showing the doctor was incompetent in other cases. Such concerns need not deter us long. Trial courts frequently confront these types of issues, especially in the criminal law context. They can be easily remedied or minimized at the summary judgment stage, with appropriate jury instructions, or by bifurcating the trial.”)

• United States v. Brown, _ F.3d _ (D.C. Cir. March 5, 2010) (bank fraud and passing fictitious financial instruments prosecution admitted witness testimony about other occasions in which the defendant used fictitious financial documents to obtain real estate, cars and other things of value; other act evidence was admissible under FRE 404(b) to show his specific intent in the charged crime)

• United States v. Washington, _ F.3d _ (8th Cir. March 5, 2010) (distribution of a controlled substances resulting in the death and distribution of a controlled substance, there was no plain error in admitting testimony from cooperating witnesses that the defendant “distributed Fentanyl patches and Percocet tablets to them between November 2005 and March 2006” which was intrinsic to the charged offenses in March and April 2006)

• United States v. York, __ F.3d __ (5th Cir. March 9, 2010) (in arson and carrying a destructive device prosecution, admitting under FRE 404(b) evidence that defendant attempt to strangle witness with a telephone cord as highly probative of the witness’s credibility (explaining why she resisted disclosing certain information to authorities earlier) and its potential for unfair prejudice did not overwhelm its probative value)

• United States v. Culver, _ F.3d _ (11th Cir. March 2, 2010) (trial for the production of child pornography, evidence that the defendant stepfather drugged and used a stun gun on his step daughter K.W. one evening was admissible under FRE 404(b) to show the defendant “had the knowledge and the means to render K.W. unconscious to explain to the jury why K.W. could not remember the filming of the tape”)

• United States v. Donnell, _ F.3d _ (8th Cir. March 4, 2010) (in distribution of ecstasy and other illegal drugs trial, it was unnecessary to consider whether the trial court erred in admitting other act evidence which was harmless based on the strength of the evidence)

Beyond these general characteristics, the six FRE 404(b) cases decided between March 2 and 9 focused on a number of common issues:

1. Contrasting FRE 404(b) Elements

As we have noted before, the circuit continue to apply different elements to admit other act evidence under FRE 404(b). See Supreme Court Watch: Will The Supreme Court Eventually Resolve A FRE 404(b) Circuit Split? Three cases explicitly described the tests applicable in the circuit for admission of FRE 404(b) evidence.

• Eleventh Circuit: United States v. Culver identified a three element test applicable in the Eleventh Circuit: “(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.”

• Eighth Circuit: United States v. Donnell indicated a four-element test for use: “Evidence is admissible under Rule 404(b) if: ‘(1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value.’”

• Fifth Circuit: United States v. York described use of a two prong test to resolve FRE 404(b) issues: “(a) the “other crimes, wrongs, or acts” must be relevant to an issue other than the defendant’s character; and (b) the evidence’s probative value must not be substantially outweighed by its prejudicial effect.”

While the number of elements to each circuit’s test for FRE 404(b) evidence differs, the identification of different numbers of specific elements do not seem to suggest that the tests differ all that much. For example, in the three cases discussed above, each circuit’s test requires a showing of relevance and that the evidence have a probative weight that is not substantially outweighed by its potential for unfair prejudice.

2. Proper FRE 404(b) Purpose

Four of the cases in the sample involved some discussion of whether the challenged FRE 404(b) evidence had been admitted for a proper purpose under the rule. The discussion from the cases indicates the wide variety of purposes that might give rise to admission of the evidence. In two cases, the evidence appeared to be admitted to “complete the story” of the crime. In United States v. Culver, the evidence to be admitted concerned that the defendant had drugged and used a stun gun on his victim at a time other than the charged crime of producing child pornography. This evidence had a proper purpose under FRE 404(b) of showing that the defendant “had the knowledge and the means to render” the victim unconscious, explaining why the victim could not remember being depicted on the alleged pornography. Similarly, in United States v. Washington, the trial court properly admitted testimony from a cooperating witnesses that the defendant distributed certain controlled substances in the year prior to his for distribution of controlled substances. This prior act evidence was admissible because it was intrinsic to the charged offense, “providing the context in which the charged crime[s] occurred,” and as a result completing “the story or provide[] a total picture of the charged crime[s].”

In the prosecution of the defendant for bank fraud in United States v. Brown, the court properly admitted testimony of other times when the defendant used fictitious financial documents to obtain real estate, cars and other things. This evidence was admissible to show the defendant’s specific intent to defraud, knowledge, motive, and the absence of mistake. The prior incidents showed that the defendant had been warned before about the use of the financial instruments and could have little room for not knowing what he was doing. In contrast, the trial court in United States v. York properly admitted evidence of the defendant’s attempt to strangle a witness with a telephone cord. The circuit noted that the proffered evidence was relevant to an issue other than the defendant’s character and that it was relevant to the credibility of the Government’s witness who had suffered the strangulation attempt. The circuit pointed out that she “explained that she withheld information from the police because she was afraid of York’s threats.”

3. Limiting Prejudice

Two cases note steps taken by the trial court to minimize the prejudice that might result for admitting the FRE 404(b) evidence. For example, in United States v. Brown, the court discussed the important role of the trial judge’s limiting instructions in minimizing the prejudice of admitting evidence of prior financial crimes. In Willis v. Bender, the court noted that under FRE 404(b) generally, trial courts frequently take steps to minimize prejudice “especially in the criminal law context. They can be easily remedied or minimized at the summary judgment stage, with appropriate jury instructions, or by bifurcating the trial.”
The court suggested use of bifurcation to minimize prejudice.

4. Harmless Error

In two cases, the court did not need to assess whether the trial court erred in admitting other act evidence. Even had the trial court erred, the error was harmless. In Brown, for instance, while the court properly admitted evidence that the defendant has previously used other fictitious financial documents to obtain real estate or other property, the court’s error in admitting evidence that the defendant failed to pay a $700 home inspection fee was inadmissible under FRE 404(b). The evidence, concluded the circuit, did “not make it more likely than not that he knowingly passed fictitious financial documents at the credit union.” But this error was harmless bin light of the other evidence properly admitted and the court’s limiting instructions.

In United States v. Donnell, _ F.3d _ (8th Cir. March 4, 2010) the circuit found it was unnecessary to consider whether the trial court erred in admitting other act evidence because that evidence was harmless based on the strength of the other evidence that had been properly admitted.

Conclusion

This survey provides a “snapshot” of sorts on how the circuits confront issues under FRE 404(b). While the other act evidence rule is a frequent subject of appeal as the survey of cases from March 2-9 indicates, the rule has few firm boundaries. Ironically, in the week following the week covered by this blog survey, hardly any FRE 404(b) cases were determined.