From Exclusionary To Inclusionary: Kentucky Case Reveals Different Approaches To Character Evidence Under Rule 404(b)

November 3, 2009

Federal Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Kentucky Rule of Evidence 404(b) is similar. It provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.

Despite the similarities between these two rules, federal courts generally have referred to Federal Rule of Evidence 404(b) as an inclusionary rule while Kentucky courts have referred to Kentucky Rule of Evidence 404(b) as an exclusionary rule. This post explains why the distinction matters.

In Wines v. Commonwealth, 2009 WL 3486390 (Ky.App. 2009), John Roger Wines appealed from a judgment convicting him of first-degree stalking and second-degree persistent felony offender. At Wines’ trial, the prosecution had presented evidence of bad acts Wines allegedly committed against previous girlfriends in order to prove identity, motive, intent, or modus operandi. The admission of this evidence formed part of the basis for Wines’ appeal, which the Court of Appeals of Kentucky granted, finding that “the facts surrounding the prior misconduct [were not] so strikingly similar to the [subject] offenses as to create a reasonable probability that (1) the acts were committed by Wines; and/or (2) the acts were accompanied by the same mens rea.”

In reaching this conclusion, the court noted that

Our Courts have repeatedly held that KRE 404(b) is to be interpreted as exclusionary in nature. “It is a well-known fundamental rule that evidence that a defendant on trial had committed other offenses is never admissible unless it comes with certain exceptions, which are well defined as the rule itself.”…For this reason, trial courts must apply the rule cautiously, with an eye toward eliminating evidence which is relevant only as proof of an accused’s propensity to commit a certain type of crime.

In other words, when prosecutors in Kentucky attempt to present evidence of other crimes, wrongs, or acts by a defendant, the default assumption is that the prosecutor is using them to prove “once a criminal, always a criminal” (in Wines’ case “once a stalker, always a stalker”). The default assumption is thus that this evidence is inadmissible propensity character evidence, rendering Kentucky Rule of Evidence 404(b) primarily an “exclusionary” rule. Only when the prosecution can affirmatively establish that the evidence is being offered for some other permissible purpose will the evidence be admitted.

This “exclusionary” approach was also the approach taken by most federal courts in the common law, pre-Federal Rules of Evidence days; however, this all changed with the adoption of the Federal Rules of Evidence. As noted by the Supreme Court of Appeals of West Virginia in State v. Willett, 674 S.E.2d 602, 611 (W.Va. 2009),

Rule 404(b) of the Federal Rules of Evidence codified the “uncharged misconduct” doctrine in two sentences, but it shifted the doctrine from being exclusionary to being inclusionary. That is to say, under Rule 404(b), it became easier to admit evidence of other bad acts.

And, as Stephanie Yost noted in Reversals of Fortune, How the Ninth Circuit Reviews Erroneously Admitted “Other Acts” Evidence Under Federal Rule of Evidence 404(b), 23 S.W.U. L. Rev. 661, 667 (1994),

Despite the common law’s exclusionary approach, the drafters of the Federal Rules also endorsed the inclusionary notion that the more evidence presented at trial, the more likely the fact finder will learn the “truth.” This latter policy encourages the admission of even marginally relevant evidence.

A brief review of federal precedent reveals these conclusions to be correct as most federal courts construe Federal Rule of Evidence 404(b) as an “inclusionary” rule. See, e.g., United States v. Garcia, 491 F.3d 61, 78 (2nd Cir. 2007) (“This Court reviews ‘404(b) evidence under an ‘inclusionary approach’ and allows evidence ‘for any purpose other than to show a defendant’s criminal propensity.'”). In other words, in federal cases, the default assumption is that evidence of other crimes, wrongs, or acts is admissible Rule 404(b) evidence. Only when the defendant can affirmatively establish that the evidence is being offered as propensity character evidence will the evidence be excluded.

As I have noted before, I prefer an approach in which courts are very conservative in admitting character evidence based upon the fear that defendants will be convicted based upon their pasts rather than the evidence presented at their trials. Thus, I prefer the Kentucky approach to the federal approach.

-CM