No area of law may be more vexing, and more subject to dispute, than the admission or exclusion of “other acts” evidence – often mis-labed “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 (5) 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 (Mar. 28, 2017). At issue was the admissibility of three assaults on women in a case where Hicks was accused of killing and dismembering a fourth female. The autopsy showed, inter alia evidence of “strangulation and sharp force injury to [the] neck.” The defense was that death resulted from a drug overdoes, and all injuries occurred post-mortem when the body was dismembered to avoid discovery.
And the other acts? As described by the plurality,
In each case appellant: (1) was introduced to drug-dependent women of similar body types for purposes of using drugs; (2) showed a sexual interest in the women, sometimes involving prostitution; (3) resorted to violence when the women behaved in a way he found disagreeable; (4) inflicted injuries on each woman by targeting her neck area with his hands, a sharp edged object, or both; and (5) verbally threatened to kill each woman.
So, why a divided court, and where is the discontent?
Three Justices – the plurality of Justices Dougherty, Todd and Mundy – found the other acts 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.”
When weighing the probativeness of this evidence against the potential for unfair prejudice, the plurality made what appears to be a clear error – probativeness was assessed by noting the circumstantial nature of the remaining proof. In other words, instead of asking how well do the three other assaults prove culpability in this case, the plurality asked how important was the “other act” evidence since the prosecution’s case was otherwise circumstantial in nature.
So far, no discontent. But that is where the other four members of the Court count. Chief Justice Saylor began by acknowledging that the Pennsylvania Supreme Court’s 404(b) jurisprudence had “incorrectly blended” the various 404(b0 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.” The Chief Justice concluded that Hicks’ lawyer failed to develop a separate prejudice analysis.
Perhaps most importantly, the Chief Justice 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 Baer’s approach was more economical. Acknowledging that “the substantive evidentiary ruling in this case 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 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, [1] a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or [2] 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 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?