No area of law may be more vexing, and more subject to dispute, than the admission or exclusion of “other acts” evidence—often mis-labeled “prior bad acts” evidence—in criminal cases. Evidence of an “act” that only conveys the actor’s character is inadmissible; but evidence with a non-character purpose may be admissible, subject to a balancing test.
In its most recent decision on the application of these principles, the Pennsylvania Supreme Court ended up with five opinions. That inability to speak in one voice shows discontent about current Rule 404(b) analysis and offers an invitation to future litigants to seek clarification and change.
The case is Commonwealth v. Hicks, No. 718 CAP, 2017 Pa. LEXIS 687 (March 28). Walter Hicks was accused of killing and dismembering a female. The autopsy showed evidence of “strangulation and sharp force injury to the neck.” The defense was that death resulted from a drug overdose, and all injuries occurred post-mortem when the body was dismembered to avoid discovery.
At issue was the admissibility of three “other acts”—nondeadly assaults on other women. As described by the plurality, in each case the appellant: was introduced to drug-dependent women of similar body types for purposes of using drugs; (showed a sexual interest in the women, sometimes involving prostitution; resorted to violence when the women behaved in a way he found disagreeable; inflicted injuries on each woman by targeting her neck area with his hands, a sharp edged object, or both; and verbally threatened to kill each woman.
So, why a divided court, and where is the discontent?
Three justices—the plurality of Justices Kevin Dougherty, Debra Todd and Sallie Mundy—found the three assaults to meet two thresholds for admitting “other acts” evidence, claiming there were both a ”required logical connection between the prior assaults and the circumstances surrounding the victim’s death” and a “‘virtual signature’ for purposes of proving common scheme, intent and identity.”
So far, no discontent. But that is where the other four members of the court count. Chief Justice Thomas Saylor began by acknowledging that the Pennsylvania Supreme Court’s 404(b) jurisprudence had “incorrectly blended” the various 404(b) exceptions and “substantially diluted the putatively stringent standard” associated with the modus operandi/proof of identity exception.
The chief justice went further. “I maintain concerns about the power of potentially inevitable character inferences associated with other-acts evidence, with requiring defendants to effectively defend mini-trials concerning collateral matters, and about the efficacy of jury instructions in this context.” Nonetheless, he found the evidence admissible in this case because it rebutted a defense of accidental killing through an approach known as the “doctrine of chances.”
Perhaps most importantly, Saylor effectively invited a revisiting of 404(b) jurisprudence. “It may well be that the interests of justice would be well served were this court to consider revamping the present approach.”
Justice Max Baer’s approach was more economical. Acknowledging that “the substantive evidentiary ruling … presents a close call,” he declined to reach a merits analysis and instead deemed any possible error to be harmless.
What remains are the two dissents. Justice Christine Donohue begins with a view of 404(b) as requiring “that use of prior bad acts evidence should be strictly limited … .” Asserting that Pennsylvania’s 404(b) rule was meant to adopt and be cabined by its common law predecessor, she finds only two allowable exceptions: To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor, by a connection which shows that he who committed the one must have done the other.
This language is drawn directly from the 1872 holding in Shaffner v. Commonwealth, 72 Pa. 60, 65 (1872).
Justice Donohue’s lengthy dissent then proceeds in great detail to dissect each of the “other acts” admitted against Hicks in support of her contention that any similarities are generic and show nothing more than propensity. She also rejects a “doctrine of chances” analysis, finding it to be propensity under another name, and argues further that even if the doctrine should be applied in Pennsylvania a more stringent test is required, including that the defendant claim that all occurrences—the act currently on trial and the preceding ones—were claimed to be accidental.
The final words came from Justice David Wecht. He voiced agreement with “the requirement that prior bad acts evidence must be strictly limited and admitted only when passed through the rigorous inquiry articulated skillfully by Justice Donohue … ” He separately emphasized the concern that a jury instruction to not use such evidence to show propensity is difficult for many to follow and “ the obvious danger that the exceptions will devour the rule [so that if] courts do not adhere scrupulously to the terms and purposes of the rule, this danger becomes reality.”
What does this mean to judges and litigants?
First, avoid an analytical error made by the plurality. When weighing the probativeness of this evidence against its potential for unfair prejudice, the plurality focused on the circumstantial nature of the remaining proof. “Probativeness” is a stand-alone feature, asking whether and how well the three other assaults prove culpability in this case and not if it is necessary because the prosecution’s case was otherwise circumstantial in nature.
For prosecutors, the advisory is ’proceed with care’ when proceeding beyond the limits of Shaffner because defense counsel are now likely to maintain that 404(b) is limited to its 1872 common law
For defense counsel, Hicks invites a litigation strategy of seeking a narrowing of the bevy of 404(b) exceptions, especially res gestae and “history of the case,” found in Pennsylvania caselaw; challenges to the efficacy of limiting instructions; and a more aggressive pressing of unfair prejudice claims.
And trial judges? Hicks offers no majority holding, but it does identify concerns of much of the court that should inform the discretionary application of Rule 404(b).•