State v. Connor, 2011 VT 23 (mem.)
Vermont Rule of Evidence 404(b) stymies a lot of second year law students (and practitioners), but it is fairly straightforward. Prior bad acts are not admissible to prove character. If a defendant is on trial for murder, the State cannot put on evidence that she once robbed a bank or that she was a habitual jaywalker to show that she is the kind of person that would kill. These prior bad acts might demonstrate that defendant is a bad or thoughtless person, but they do not necessarily make it more likely than not that she committed the murder for which she is being tried.
The exception to the rule—and this is a big one—is that prior bad acts are admissible for other purposes such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In some circles, this is known as the exception that threatens to swallow the rule. But if you really think about it, it makes sense. Basically, prior bad acts cannot be admitted to show that the defendant is a bad person, but they can be admitted to show that the defendant knew how to commit the crime; that the crime fits a pattern; that because of prior bad acts defendant had a reason to commit the current crime; that defendant had prepared for the current crime with the prior bad acts; or that defendant had planned it based on those prior acts.
The key is to keep in mind why the rules of evidence exist. The rules keep juries from having to judge irrelevant, unreliable, or unverifiable evidence. If a piece of evidence does not make an element of the crime (also known as a material fact) either more true or less true, and if there is no way to verify it (such as by questioning the witness on cross examination or by establishing a chain of custody for a document), then we are not going to make a jury try and decide its validity on top of weighing the credibility of the evidence.
While Rule 404 (b) can be dealt with as a relatively minor issue, it comes to the forefront as a significant issue in two general types of cases: incest and domestic violence. In these cases, the complainant is close to the defendant and might struggle with turning a family member/partner into the police. Details of the actual crime might appear sketchy or vague if the complainant has waited to report, if little physical evidence is available, or if the complainant’s testimony changes due to intimidation or shame. In such cases, evidence of defendant’s prior bad acts can be critical to reveal that the incident at issue fits within a broader scheme of abuse.
In the present case, Defendant had been in an intimate relationship with Complainant for a year during which there was a great deal of circumstantial evidence indicating an on-going abusive relationship. This culminated in the spring of 2008 when Complainant went to the police stating a desire to escape and to press charges against Defendant.
Charges and trial followed. Defendant went as a Pro-Ser, which in the eyes of at least part of the SCOV, had an impact on what followed.
The big issue at trial and on appeal is the admission of prior bad acts by Defendant against Complainant. At least three witnesses testified about evidence tending to show that Defendant assaulted Complainant on several occasions earlier in the relationship and that these assaults were consistent with domestic abuse.
Defendant’s argument on appeal is basically, “this prior evidence distracted the jury from the State’s weak case and basically led to my conviction because they saw me as a bad man.”
The SCOV majority disagrees. For those Justices, the evidence shows that the prior acts were admitted for a proper purpose—to show the nature of the relationship and the on-going abuse. While the SCOV strongly cautions that prior bad acts are far from automatically admissible in domestic abuse cases, they were properly used here. Furthermore, concludes the Majority, the witness testimony formed a minor portion of the case. The jury simply did not buy Defendant’s version of events, and we are not going to overturn what the jury has found. Conviction is affirmed.
Concurring with the majority in outcome, Justice Dooley and Justice Johnson have a slightly different but critical take. They agree with the majority’s conclusion for different reasons. First, the concurrence disagrees that the prior bad acts were a minor part of the State’s case. After all, the State devoted at least three witnesses to the issue. Of that evidence, the concurrence concludes, only the Complainant actually testified directly about the prior bad acts. The remaining witnesses (a nurse and a police officer) could offer only circumstantial evidence that tended to show that these prior bad acts did, in fact, occur. In these instances, the Concurrence writes, the Court should have undertaken an extensive Rule 403 analysis.
Rule 403 is one of the easiest and shortest rules of evidence. If a statement is more prejudicial than probative, it cannot be admitted. In other words, if a piece of evidence only helps the jury a little to decide an important fact, but it would greatly prejudice the jury against the Defendant, the State cannot use it. For example, a woman is on trial for vandalizing a sign. During her testimony, she testifies that she is a pillar of the community. The State has evidence that the defendant was recently fired for embezzlement, has several DUIs, and owes years of child support, all of which would disprove defendant’s testimony. Rule 403 would tell you that you cannot put on this evidence. Whether or not the woman is a pillar of the community is largely irrelevant to the crime of vandalism. Proving that this statement is false does not help the jury all that much, but if it comes out that she is an embezzler, a drunk driver, and a bad mother, our hypothetical defendant will have a hard time winning anyone over—regardless of her actual culpability to the vandalism.
In Defendant’s case, the Concurrence notes, the testimony of the police officer and the nurse is a textbook Rule 403 issue. The circumstantial evidence could only prove a collateral issue (whether Complainant told the truth about the past acts) but threatened to greatly prejudice the jury. Such a situation required the trial court to make a careful decision about the potential prejudicial effect that this evidence might have and whether its probative purpose outweighed it. The only problem is that Defendant, acting as a Pro-Ser, failed to preserve his objection, and thus, the full Rule 403 analysis never occurred (a point the majority suggests is more than questionable). Because Defendant failed to object, the issue is not preserved, and therefore the issue is not before the SCOV—thus, the concurring conclusion that the verdict should stand.
Both the majority and the concurrence share a concern for preserving the rights of parties to challenge the admission of prior bad acts under Rule 404(b) should slightly different facts arise. The SCOV is united in its sentiment that the current case does not offend the general standards of Rule 404(b), but their determination rests on a fact-specific analysis—all five members are leery that anyone takes away more from this case than these specific facts warrant. Of the two opinions, the Concurrence provides the easier standard to follow and perhaps the better argument in terms of logic. The Concurrence tells us to look at the direct evidence of prior bad acts under Rule 404(b) and then analyze the admission of any circumstantial evidence rigorously under Rule 403’s prejudicial standard. The Majority’s approach is a bit murkier and could leave the trial courts with more leeway to admit both direct and circumstantial evidence under Rule 404(b) without extensive Rule 403 analysis. The result puts the issue back into the hands of trial courts to conduct their own Rule 404(b) analysis. If any direction remains, it is to not take such issues lightly—even in cases of domestic abuse.
Not that domestic abuse invites a light touch.