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  • Brian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 404(b)

Welcome to Rule 404 part (b) which I call, “The choose your own adventure rule.” Why do I call it that? Well Rule 404 has a non-exclusive list of reasons why you can get into horribly damaging character evidence even though the general rule says you can’t offer character evidence. Every lawyer should learn how to use and defend against the use of Rule 404. It’s like creating a rule that says you can’t eat cookies unless it is to prove that you don’t like cookies. You’re going to be shoveling cookies in your mouth and saying that they taste awful but guess what? You still get the cookies.

General Rule

I’ve heard this referred to as “prior” bad acts by many lawyers, but there is no limitation on the timing of the bad act which can be used under 404(b). So I would say it is “other” bad acts. Technically the wording is crimes, wrongs, or other acts. There is no requirement that the act have resulted in a conviction.

Again here the general rule is that you can’t offer this kind of evidence to say once a criminal always a criminal. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”

The Endless Exceptions

“This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” This is not an exhaustive or exclusive list. See Montgomery v. State, 810 S.W.2d 372, 377 (Tex. Crim. App. 1990).

Motive

The most common example of evidence of motive is offering evidence that the defendant may have a drug problem in order to show that a theft or burglary occurred. Knox v. State, 934 S.W.2d 678, 682-83 (Tex. Crim. App. 1996. Gang affiliation may also be used to show motive for example in the case of a snitch being murdered. Hernandez v. State, 52 S.W.3d 268, 282 (Tex. App. – Corpus Christi 2001, no pet.).

Opportunity

When defense raises a defensive theory of “lack of opportunity” then other bad acts may become admissible to disprove the lack of opportunity. Evidence of other acts of child molestation were admissible in Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) when the defendant alleged that he was never alone with the complainant and the acts occurred while others were present.

On this point it should be noted that Texas Code of Criminal Procedure §38.37 allows a prosecutor not only to introduce this kind of evidence to show opportunity but “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” The legislature basically wrote that all the exceptions and rules that we have on this topic are going to be thrown out the window if you are on trial for a child sex offense. There is a laundry list of offenses to which this article applies.

§ 38.371 applies a different standard for Family Violence cases which includes a new category that you could basically throw under 404(b). This is “regarding the nature of the relationship between the actor and the alleged victim.” Tex. Code Crim. Pro. §38.371(b).

Identity

When you are proving identity with a prior bad act you are going to need evidence that the prior bad act was really similar. This is the exception for Modus operandi or a signature or calling card type of crime. I once prosecuted a guy who had been previously convicted of using a hoax bomb at three different bank robberies. He would block the door with sticks and then present the hoax bomb and demand money. It was pretty unique and was very similar to the offense I was charging. I didn’t offer it as 404(b) evidence but I probably could have. The Court of Criminal Appeals in Beets v. State, upheld the introduction of another murder when the evidence showed that the same weapon, motive, time of day, and means of disposing the body were employed in two separate murders. Beets at 740-41 (Tex. Crim. App. 1987).

Intent

Intent may be generally demonstrated in the evidence of the conduct itself. If that is the case then there would be a good argument that evidence of intent in the form of other bad acts should not be admitted. However, as defense you may open the door by claiming a lack of intent through opening statement, argument, or otherwise. Ludwig v. State, 969 S.W.2d 22, 30 (Tex. App. – Fort Worth 1998, pet. ref’d).

The classic example of motive is offering evidence of a defendant’s drug problem in order to prove a motive for committing a burglary or theft.

On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.

Of course the first exception to the rule immediately follows and it says that an accused in a criminal case may offer evidence of his pertinent trait and if the evidence is admitted then the prosecutor may admit evidence to rebut it.

The second exception is for civil cases where someone accused of immoral behavior (technically moral turpitude) may offer evidence of a pertinent character trait and the opposing party may rebut it.

Preparation, Plan

If you steal a vehicle on Monday and rob a bank in it on Tuesday then the state is going to try to offer that into evidence under 404(b). This exception is focused on acts that are not part of the same criminal episode but show preparation for the offense that is the subject of the trial. Other examples would be stealing a rope from Wal-mart and then using it a week later to strangle someone.

Absence of Mistake or Accident

When defense cross examination or other evidence raises the issue that whatever happened may be an accident or a mistake the prosecutor may offer evidence of other wrongs to rebut. For example if on trial for murder related to a fire that defense alleges was started by accident or mistake then prior involvement in Arson for insurance money may be offered. Logan v. State, 840 S.W.2d 490 (Tex. App. – Tyler 1992, pet. ref’d).

Tread Carefully

If you are a criminal defense attorney you should be aware of these rules not because they are going to help you through offering evidence in your case in chief but to be aware of how to avoid opening the door to the prosecution offering against you and your client.





Rule 404. Character Evidence; Crimes or Other Acts

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for an Accused.

(A) In a criminal case, a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

(B) In a civil case, a party accused of conduct involving moral turpitude may offer evidence of the party’s pertinent trait, and if the evidence is admitted, the accusing party may offer evidence to rebut it.

(3) Exceptions for a Victim.

(A) In a criminal case, subject to the limitations in Rule 412, a defendant may offer evidence of a victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

(B) In a homicide case, the prosecutor may offer evidence of the victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(C) In a civil case, a party accused of assaultive conduct may offer evidence of the victim’s trait of violence to prove self-defense, and if the evidence is admitted, the accusing party may offer evidence of the victim’s trait of peacefulness.

(4) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

(5) Definition of “Victim.” In this rule, “victim” includes an alleged victim.

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in Criminal Case.This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.


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