*1 Virginia, Plaintiff of West STATE
Below, Appellee, WILLETT, Defendant
Gloria Jean
Below, Appellant.
No. 33835.
Supreme Appeals Court of Virginia. Jan. 2009.
Submitted Jan. 2009.
Decided
Concurring Opinion of Justice Ketchum
March *2 Detch,
Paul S. Lewisburg, for Appel- lant. Truman,
Tоm Prosecuting Assistant Attor- ney, Beckley, Appellee.
PER CURIAM.1 Willett, Gloria Jean defendant below and (hereinafter appellant herein referred to as Willett”), appeals “Mrs. from an order of the Raleigh County Circuit Court of denying her motion for a new trial. Mrs. Willett was prison sentenced after convicted on drug possession four counts of intent to deliver. She was also convicted of conspiracy one felony.2 count of to commit a In assigns this Court. Mrs. Willett error to the trial ruling permitted court’s jury to hear evidence of collateral crimes under Rule of the West 1. Pursuant to an administrative order entered on The circuit court sentenced Mrs. Willett to one 1, 2009, January the Honorable Thomas E. years imprisonment to fifteen on one count of Justice, McHugh, assigned Senior Status drug possession with intent to deliver. Sen- Supremе Appeals sit as a member Court of imposed remaining tences were for the counts Virginia commencing September of West suspended. but were Mrs. Willett is now out continuing until the Chief Justice de- prison parole. and on longer necessary, termines that assistance is no in light Joseph of the illness of Justice P. Al- bright. Beekley police May received a careful review of After
of Evidence.3 activity anonymous tip fourth about appeal, submitted the record briefs and anonymous inform- arguments of the Willetts’ home. oral having listened person selling as the er named Mrs. Willett affirm. parties, we drugs from the home.
I.
13, 2005,
May
Beekley police exe-
the
On
the
a search warrant
for
Willetts’
cuted
AND PROCEDURAL
FACTUAL
search,
police
discov-
During
home.
HISTORY
3,000 pills,
handgun,
a
and over
ered over
2002,
her
Mrs. Willett
In 2001
$1,000
narcot-
pills
in cash. The
included the
husband,
Willett, purchased a mod-
Richard
Percoeet, Roxycodone,
drugs Oxycontin,
ic
Virginia.4 At the
Beekley,
house in
est
search,
Subsequent
and Xanax.
to
in
couple resided
purchase, time of the
police arrested Mrs. Willett.5
in
purchased
The house
Tampa, Florida.
grand jury
a
Mrs.
was indicted
Willett
required
Beekley
poor
in
condition
drug possession with intent
on four counts of
Consequently, for
lot of structural work.
deliver,
conspiracy
and one count of
purchased,
years after the house was
several
2006,
felony.
In
the case went to
commit
Tampa.
continued to reside
Willetts
trial,
During
called
trial.
However,
frequently
couple
drove
five witnesses. Four of the witnesses were
Beekley
done on the house.
to have work
testified re-
law enforcement officials who
City
Beekley
point
At
some
garding
during the search.
evidence obtained
telephone
call
Department
Police
received
testimony
They
provided
about informa-
also
Regional
from an inmate at the Southern
investigation
during
tion
obtained
Reed,
inmate, Alan
informed the
Jail. The
witness,
Reed,
The fifth
Alan
was the
case.
police
drugs
were
sold from the
provide
direct
witness
purchased
the Willetts. Subse-
house
purchased drugs
Mrs.
having
from
Willett.6
call, August
a Beck-
quent to this
Reed
that he was a
addict
Mi’.
testified
ley police
received additional infor-
detective
period
he
during
and that
2003 to
that indicated a
mation from another source
50 to 100
visited Mrs. Willett’s home “about
Tampa,
coming from the
white female was
pills
times” to obtain narcotic
from Mrs. Wil-
Florida,
Quarry
area to a house at
brought
testified that he
lett. Mr. Reed also
Street,
home, and she would
the Willetts’
pur-
othеr individuals to Mrs. Willett for the
bring
Oxycontin to the
large amounts of
pose
buying
drugs. On those
narcotic
home,
possibly to
On a third occasion
sell.
occasions,
give
drugs
him
Mrs.
would
Willett
anony-
Beekley police received an
gratuity
bringing
to her.
as a
for
customers
drug activity at the
regarding
mous call
Wil-
testimony by Mr.
There was further
Reed
letts’ home:
occasions,
on a few
Mr. Willett was
they
into detail that
had
caller went
drugs
present when he obtained
from Mrs.
coming
personally
cat’s
to the
observed
Willett.
house,
away from the house as
parking
but
case-in-chief,
themselves,
During
she
going
Mrs. Willett’s
not to draw attention
daughter
her
and adult
for four or five minutes and
called
husband
house
they
opinion,
testify
their
on her behalf. Mr. Willett testified
leaving,
then
and —in
drugs. Their
they
drug activity was
that his wife did not sell
thought that some
daughter
had a
going
testified that Mrs. Willett
on.
However,
assigned
рolice
petition
appeal
arrested Mr. Willett.
also
5. The
also
Mrs. Willett's
for
charges against
eventually dropped.
him were
ground
appeal.
a second
appeal
crimes
Court limited the
to the collateral
trial,
filed a motion to
6. Prior to
Mrs. Willett
issue.
court,
testimony by
preclude
Mr. Reed. The trial
hearing,
after a
denied the motion and allowed
family
living in the
4. Mrs. Willett had
members
W. Va. Rules of Evidence
under
Beekley area.
drugs
for her
sufficient evidence
hoarding
types
all
to show
habit
Second,
took the
occurred.
we review
use. Mrs. Willett
stand.
de novo
personal
drugs
correctly
whether the trial
testified that
the narcotic
were
found the
She
legitimate
evidence was
for a
legally
prescriptions written
admissible
obtained from
Third,
purpose.
for an
physician
a West
we review
abuse of
Flоrida
discretion the
admitted that nei-
trial court’s conclusion that
physician.7 Mrs. Willett
prescribing
the “other
doctor knew the other was
acts” evidence more
ther
than
her.
under Rule 403.
drugs
same narcotic
She further
drugs
to relieve
testified that she needed
294, 310-11,
operation
from a back
that she had in
pain
629-30
State v.
2000. Mrs. Willett further stated that be- McGinnis,
S.E.2d 516
*4
problems obtaining
having
she feared
cause
(1994),
explained
we
this Court will
that
“re-
hoarding
drugs,
began
she
them.
the
view the trial
court’s decision
admit evi-
404(b)
pursuant
evidence,
to Rule
under an
At
the
the conclusion of all
McGinnis,
of
abuse
discretion standard.”
convicting
jury returned a verdict
Mrs. Wil-
159,455
W.Va. at
S.E.2d
528. McGin-
indictment.
lett on each count of the
further
nis
held:
imposed a
subsequently
sentence
trial
imprisonment
that
on one count
was to be
appeal
Our
function on
is limited to
served,
suspended
imposеd
but
the sentences
inquiry
as to whether the trial court
remaining
on the
counts. After the trial
way
acted in a
arbitrary
that
sowas
and
post-trial
court denied Mrs. Willett’s
motion
irrational
that
it can be said to have
trial,
appeal.
a new
she
this
filed
abused
In reviewing
its discretion.
404(b) evidence,
admission of Rule
we re-
view it in
light
most favorable to
II.
party offering
this case the
STANDARD OF REVIEW
prosecution, maximizing
its
value
requires
minimizing
This case
the Court to de
its
effect.
properly
termine whether the circuit court
McGinnis,
testimony involved
actor,
ted or
the defendant
that
Insofar as Mrs. Willett was
Mrs. Willett.
be
under
evidence should
excluded
drugs with intent
possession
If a sufficient
has
deliver,
Mr. Reed’s
involved
made,
trial court
then de-
been
must
by Mrs.
“other
Willett.
crimes”
relevancy of
un-
termine the
the evidence
“[ejvidence
states,
of other
part,
Virginia
der Rules 401 and 402 of the West
crimes, wrongs,
admissible
is not
Rules of Evidence and conduct the balanc-
person
of a
in order
prove the character
ing required
under
403 of the West
conformity
that he or she acted in
show
of Evidence.
If the trial
404(b) provides
therewith.”
court is
then satisfied
the Rule
general prohibition
to its
exception
admissible, it
should instruct
the introduction of “other crimes”
on the limited
for which
exception,
evidence. Under
“other
A limit-
such evidence has been admitted.
may “be
for oth-
crimes” evidence
admissible
ing
given
be
time
instruction should
at the
motive,
proof
oppor-
purposes,
er
such as
offered, and
the evidеnce is
we recommend
intent,
knowledge,
tunity,
preparation, plan,
repeated
it
the trial court’s
accident,
identity,
or absence mistake or
general charge to the
at the conclu-
request
provided
upon
by the
*5
sion
evidence.
prosecution
pro-
in a
the
criminal case shall
prosecution
filed notice
intention
of its
trial
vide
notice
advance of
reasonable
404(b)
through
to introduce Rule
general
nature of
such evidence it
notice,
In
Mr. Reed at the trial.9
the
its
intends
introduce at
Rule
trialf.]”
to
prosecution
the
declared
syllabus point
In
of State v.
the evidence was to be offered was that of
McGinnis, 193 W.Va.
Mr. Reed had cut her lawn. She Q. Gary however, And I take it that would be a paid that she had him cash for his person who would be available to confirm services. Mr. Reed also testified while deny particular incarcerated, that statement? he police was he called the drug inform them that Mrs. Willett was
A. Yeah. get dealer in order to amake deal to out of Q. particular Now—and where did that jail. prosecutor The record rеflects that the place? transaction take refused to offer deal to Mr. Reed. Gary’s Gary A. I went down to looking When at the evidence its totali- any, said he didn’t have so we went to his ty, prop- we are trial satisfied that the sister’s house. erly admitted Mr. testimony Reed’s under Q. you And both of went? though Even Mr. Reed was A. Yes. give any specific unable to regarding dates Q. been, your And that would have Willett, his with transactions Mrs. that recollection, years ago? best two tempered by matter is the fact that there A. Yes. testimony by was Mrs. that her Willett had intended to have Mr. gave police brother a statement Lilly testify hearing, at the but he not was corroborated Mr. Reed’s accusations acknowledged available. Consequently, Mrs. Willett at the her.12 we find no clear error presenting legally arguments. supported pertinent authority sufficient Seе but are not with LaRock, (citation omitted)). ... are not considered[.l” 470 S.E.2d (1996) ("Although liberally we construe Clecldey 12. We note that Professor should has review, determining presented briefs issues correctly may observed that Rule only passing ... issues which are mentioned be admitted without corroboration: IV. that there trial court’s determination to show that the oth-
was sufficient CONCLUSION actually transpired. further We er bad acts properly trial court deemed the find that the denying The circuit court’s order Mrs. Wil- legitimate purpose admissible for new trial affirmed. lett’s motion for a 404(b) analysis. It used the Rule under Affirmed. motive, plan- Mrs. to demonstrate Willett’s intent. ning, and KETCHUM concurs and reserves Justice Likewise, circuit court we find the concurring opinion. right to file a that the effect
properly concluded outweigh the Mr. Reed’s did not participating. ALBRIGHT not Justice Court probative value of that evidence. This sitting by Senior Status Justice McHUGH “[mjost, all, if not previously has stated assignment. temporary party which one an action offers [evidence] prejudicial to in evidence calculated to be [is] KETCHUM, J., concurring: therefore, party; it ‘un opposing (Filed 2009) March prejudice’ [Rule is] fair McIntosh, concerned.” State v. 207 W.Va. majority’s opinion. I concur with the (2000) (internal 561, 573, 534 S.E.2d Reading light the record in the most favor- omitted). have quotations and citations We prosecution, judge trial did able to the “[ujnfair prejudice clear that does also made allowing his discretion in not abuse damage not mean a defendant’s case that to hear evidence of the defendant’s un- legitimate probative from the force of results charged “bad acts” admitted under Rule evidence; rather it rеfers to evidence of the West Evi- suggest which tends to decision on an [a] dence. improper at basis.” compelled separately I write be- feel standard, Applying cause believe the use of “bad acts” reasonably the trial court could have conclud 404(b) in criminal trials evidence under Rule ed that Mr. Reed’s routinely now to convince the used unduly prejudicial. of a fact and was' not they convict the defendant be- should *7 uncharged Mr. Reed’s about the person. cause is not a nice he she integrally transactions was connected to activity charged the criminal in the indict- A. prior drug
ment. Evidence of the
sales was
necessary
place
possession
Mrs. Willett’s
101(b) is Needed
Modification of
large
prescrip-
of such a
amount of narcotic
to Protect the Innocent
pills
comрlete
story
tion
in context and to
charged
Mr.
all know the axiom that
the trial
“[i]n
crimes.
Reed’s “testimo- We
offense,
ny
highly probative
any possible
presumption of
was so
of a criminal
prejudice evaporated
comparison
existing
in
it.
in favor
a defendant
innocence
error,
every
Discerning
through
stage
no
hold
trial court
continues
of the trial
we
guilty by
jury.” Sylla-
per-
finding
acted within the realm of discretion in
until a
11,
Pietranton,
mitting
jury
v.
140
to hear and consider the
bus Point
State
W.Va.
444,
testimony.”
774
But the real
contested
it must be reliable. is not 4— for 504, Zacks, ed.2000). 509, W.Va. See State v. 204 "credibility” mous with there- is 911, (1998) ('"Courts have 513 S.E.2d 916 simply fore not unreliable because it is in con- 404(b) evidence of held that corroboration of Thus, by testimony. flict or contradicted ”) required.’ (quoting other crimes is not United though evidence iL diis can be admitted even 119, (4th Bailey, F.2d Cir. States v. 990 123 not corroborated. 1993)). some in if a defendant has committed to be used rebuttal —but denee that indictment, beyond attempted in the defendant those first to show he did not bad acts the de commit because jury dispenses person notions that the crime he was a good evidence Syllabus innocent and reviews the character. As we said in Point fendant is Miller, is a 2 perspective that the defendant of State v. 75 W.Va. from the 84 S.E. (1915): jury It a person.” is undeniable that “bad they more inclined to convict once
will be
It is
to admit
error
a
such
engaged in
may
a defendant
have
hear that
ease, tending
prove
bad
character
acts” —even if the defendant was
other “bad
degradation
part
on the
charged or convicted for that other
never
objection
over his
and in
the absence
analy
“The niceties of a
conduct.
McGinnis
good
evidence adduced
him to establish
overwhelming prej
sis
little to remove the
do
part.
his
character on
heaped upon
that is
a
udicial effect
defendant
Graham,
Syllabus
See
Point
State v.
case,
in a
once a
learns of the
criminal
(1937) (“In
119 W.Va.
uncharged away jury, misconduct from thе C. allowing proper to focus on the question: does the evidence defen- show the Away the Correct Rule Shift from he or dant committed crime with which practicing When I started first law in currently charged? she is since prosecutors rarely if ever tried to convict ago, two acts” took the bench months “bad using defendant evidence mis- “uncharged been evidence has raised as an error virtu- conduct” and “other bad acts.” were Courts ally every appeal presented to our restrictive, exceptionally rarely allowed prosecutors Court. It obvious that are the use of collateral crimes to be admitted. using prejudice acts” “bad evidence to defen- was tried defendant jurors’ to divert from dants and attention charged warrant in the or the indictment. surrounding crime. rule common-law of evidenсe on “other This abusive use of acts” “bad bad acts” West was a clear rule future, will, prosecutors exclusion: the could not be admit- person. lead conviction of an innocent ted, except exceptions. a few narrow this, propose Of I am convinced. I therefore It person was axiomatic when a change in criminal eases.
placed for the partic- on trial commission of a crime, person ular if the be going was to B. convicted, person going then the to be (1915) The Correct Rule: State v. Miller upon showing convicted evidence based early as person’s specific charged As this Court said that of guilt offense more, misconduct other that for Nothing nothing evidence of than in the indictment. which a defendant was tried could not less. Syllabus a trial. in Point
be used at
We held
Virginia and,
that Wеst
reason
—
State,
(1872):
1 of
Watts
rests, nothing police private suspicions— ought not that is mat- ter.”). traditionally been viewed dis- have Anglo-American Probably law.
trust My of bad recollection of the rare use limiting the use principal reason for of supported by cases is criminal Thomas, has Syllabus at trial been 11 “other crimes” evidence Point of State v. (1974), prejudice where the such will the fear that Court said: against The notion jury the accused. Subject distinct ten- prejudice encompasses exceptions, of two it is well-estab- rule that in a lished common-law jurors. The first is the tenden- dencies of proof prosecution, shows or tends to which charged, cy the crime to convict man of guilty that of show accused offense, guilty he is of that but not because of and offenses commission other crimes indicates because evidence introduced times, they are of though even unpunished he had another committed charged, nature as the one is incom- same man” who crime or that he is a “bad should petent for the inadmissible present regardless be incarcerated of his particular commission guilt. A conviction for this reason would charged, crime such other unless offensеs may principle a man violate the be legally are an element of or are connected punished for those acts with he with the offense for which the accused is charged. the ten- has been The second is trial. dency infer that because accused on, Syllabus The Court Thomas went crime, committed one he committed the exceptional Point to list the five cases charged. many crime instances this “other bad could where acts” evidence inference rests on no foundation admitted: than the belief that commission one exceptions permitting evidence of propensity indicates to commit crime crimes charges collateral to be admis- equation others. Convictions based on this recognized sible accused are as disapproved are because limited if follows: evidence is admissible it propensity probity evidence. Whatever (2) (1) motive; intent; tends establish may data statistical demonstrate about the (3) accident; (4) the absence of mistake repeated given likelihood of crimes in a embracing plan a common scheme or offenders, group says it little about the commission two or more crimes so relat- Recogniz- guilt of an individual defendant. proof to each other tends ed one tendencies, ing both these American others; (5) identity establish generally have courts excluded other pei’son with the commission of proves crimes evidence which no more the crime on trial. disposition” “criminal than or “criminal expressed Tibornas Court obvious character,” reasoning possibility that the prosecutors try might concern that still inflaming jury outweighs sentiments by using for one defendant limited relevance of evidence. such crimes, that the defendant committed other 1961). Note, (April, 70 Yale L.J. 763-64 See and raise inference with the Rees, McKinney v. F.2d previously because the defendant had com- (9th Cir.1993) Trial, (quoting Harrison’s crimes, mitted other the defendant then (Old 1692)) (“Hold, Bailey How.St.Tr. 834 the crime more liable have committed you doing you going *9 what are now? Are presently which he or she indicted and away, arraign Away, being his whole life? tried.1 commentator, finding uncharged jury 1. One a in a treatise on increases likelihood of of misconduct, gave following summary guilt. Chicago Jury liability Project of re- or search on the effect of bad acts evidence in Chicago reached same conclusion. criminal cases: practical researchers that as a mat- concluded ter, oрerates presumption by of innocence ... Studies School of Econom- London (LSE) prior criminal indicate for defendants without rec- ics that the admission of a de- uncharged significantly uncharged fendant's Evidence misconduct ords. of misconduct expressed by prove concern State to But an even evidence which is relevant argua- was not with “the legally the Thomas Court connected charge with the admissibility of the evidence of collateral being ble which the accused is tried. charges recog- crimes and under one of the 16, Thomas, Syllabus svipra.3 Point rather, exceptions,
nized
but
whether
prejudiced
by
the accused
D.
employment
‘shotgunning’
excessive
of
against
such evidence
the accused.” Thom-
The Academics Take Over
445,
as,
Congress adopted the Federal
prosecutors
Thе Court was concerned that
Evidence.
“The philosophy of the
poison
jury’s
would
a
attitude
a
of
toward
de-
Rules,
qualifies
Federal
and it
as revolution-
through nothing
piling
fendant
more than
ary,
by
relevant
which it
wide-ranging
massive
volumes of “other
anything
gives promise
is meant
of be-
quantity
bad acts” evidence.
mere
facts,
ing helpful to the trier of
is admissible
prejudice
this evidence would also
a defen-
if
incompetent,
policy-
it is not rendered
by confusing
ability
dant
the defendant’s
reasons, by
dwindling
based
number of
present
by
to the indictment
defense
com-
exclusionary
Waltz,
Jon R.
rules[.]”
“Judi-
pelling
defendant
defend
unre-
cial Discretion in the Admission of Evidence
lated, uncharged offenses.2
Evidence,”
Under
the Federal Rules of
gave
following
The Court
therefore
1097,1120
N.W.U.L.Rev.
admonition to circuit courts
criminal cases:
In the exercise of discretion to admit or
of the Federal Rules
Evi-
exclude evidence of collateral crimes and
“uncharged
codified the
misconduct”
charges,
overriding
sentences,
considerations for
doctrine in two
it shifted the
but
scrupulously protect
the trial court
being exclusionary
are
doctrine from
right
inclusionary.
the accused in his
to a fair trial
say,
while
That
is to
under Rule
404(b),
adequately preserving
right
of the
it became easier to admit evidence of
2. As the Court said in Thomas:
Evidence 1:2
Edward
ported by
strips
uncharged
misconduct
into the
suggesting
ment ...
sons and
dant....”
ty Chicago
sions reached earlier
in their estimation of the
er when crimes are
fenses are tried
themselves.
Edith Greene and Elizabeth Loftus found that
"jurors’ ratings
a "different
ered that
evidence and
nocence.
learns of the
deciding
Social Science
evidence. That research confirms the conclu-
disposes
The National Science
the defendant of the
Imwinkelried, Uncharged
§
prejudicial impact
laypersons
whether to convict. The
is found in connection with evidence
attorneys frequently disagree among
If the
In another
the National Science
misconduct and the
immoral conduct
stigmatizes
[2008]
record,
studies. The researchers discov-
separately.”
of a defendant’s
Program sponsored
calculus of
judge
to find him liable or
within
(footnotes omitted).
often differ from
joined
the defendant and
research
the LSE and Universi-
admits
Foundation
"the
each
presumption
of various
than when the of-
will
probabilities”
greatest agree-
group, layper-
guilt
probably
jury thereby
project sup-
Foundation,
Misconduct
defendant’s
the defen-
Law and
attorneys
аre
research
effect of
types
guilty.
high-
pre-
use
in-
3. See
sound
not obfuscate the main issues of the case or be
policy
introduced for the
collateral
foundation for the introduction of an otherwise
Thomas,
eral to material issues of a criminal trial shall
defendant
prosecution.
variety
This
the minds of the
Certainly,
defense and close attention and control
ment
diverted from the
avoided
evidence in volume and
guilty
fair trial when he is
his
fendant to meet
guilty
over,
raises collateral issues which
trial court to insure that an accused
strategy
of the law that
discretion,
gives
result,
charge; accordingly,
*10
matter,
by prompt objection
by making
Syllabus
admissibility
the indiscriminate
W.Va.
him no
issues
obviously prejudicial,
specific
defense;
S.E.2d 737
should refuse such
jurors
charges
charge immediately
Point
that the
information;
with other crimes. More-
him
being subjected
matters which
court, in
of the collateral crimes
and which
to believe the accused
respond
404 404(b) uncharged vigorously contest the use of mis The 1975 Rule stat-
other bad acts.4 404(b) Consequently, conduct evidence. ed: frequently litigated disputes are the most (b) crimes, wrongs, Evi- or acts. Other appellate evidentiary issue in courts. 6 In crimes, wrongs, or acts is dence of other cases, unscientific search of West prove the character of nоt admissible to published at criminal cases in found least 78 in to show that he acted person in order years 20 where the admission of the last however, may, be conformity therewith. It 404(b) bad acts under W.Va.R.E. other purposes, as for other such admissible disputed appeal.7 on intent, motive, opportunity, prepa- proof of ration, knowledge, identity, or ab- plan, 404(b) cases, many I believe that Rule or accident. sence of mistake being applied inconsistently. appears It variations, adopted this Court With a few prosecutors and trial courts often search for of the Federal Rules into most “pigeonhole” proof a convenient to admit of Virginia Rules Evidence in 1985.5 of acts, perform perfunctory other bad then value potentially impact decisive balance of the its
Because of the misconduct, admitting prejudicial and countervail effect before the other uncharged of its acts evidence.8 See character, attorneys Syllabus Point ing prejudicial defense bad 1,894 exclusionary Virtually every regional "Despite ap- common law's federal cases. 4. proach, reporter a new drafters of the Federal Rules also advance sheet contains un- inclusionary charged opinion, notion that the more endorsed the misconduct and the federal trial, likely presented ordinarily the more advance sheets contain two or three learn the ‘truth.’ This latter topic. fact finder will new decisions on policy encourages margin- Imwinkelried, of even admission Uncharged Edward 1 Misconduct Yost, Stephanie ally (footnotes omitted). relevant evidence." "Rever- § 1:4 [2008] Evidence See Yost, sals of Fortune: How the Ninth Circuit Reviews Stephanie "Reversals of Fortune: Erroneously Admitted "Other Acts" Evidence Erroneously the Ninth Circuit Reviews Ad- How 404(b)," Under Federal Rule of Evidence mitted "Other Acts” Evidence Federal Under (1994) S.W.U.L.Rev. 404(b),” Rule of Evidence 23 S.W.U.L.Rev. 661 ("The (1994) impact substantive of the Federal 404(b) 5. Our Rule was amended in especially Rules of Evidence is dramatic in the now reads: 404(b), generated case of Rule which has more Crimes, (b) Wrongs, Other or Acts. Evidence any reported decisions than other subsection of crimes, wrongs, other or not admissi- acts is Melilli, Rules.”); the Federal Kenneth J. “The prove person in ble to the character of a order Revisited,” Character Evidence Rule conformity to show that he or she acted in (1998) ("The practical B.Y.U.L.Rev. however, may, It therewith. admissible 404(b) impact of Rule must be understood nоt motive, purposes, proof oppor- other such as proportion of cases in which these intent, tunity, knowledge, preparation, plan, resolved, quantity in issues are but also accident, identity, absence of mistake or or such cases in which these issues materialize. provided request by upon accounts for a number of prosecution provide in a criminal case shall published judicial opinions any provi- than trial, during notice in advance of reasonable Evidence, sion the Federal Rules of pretrial if trial good the court excuses notice on uncharged introduction of evidence criminal shown, general cause nature of apparently conduct under Rule has in- such evidence it intends to introduce at trial. substantially since when the Fed- creased enacted.”). eral Rules of Evidence were 6. As Professor Imwinkelried states: potentially impact Because of decisive context, put To number 2007 Statis- misconduct, uncharged plaintiffs prosecu- Report tical issued the Court indicates we frequently tors offer such evidence. Because sug- reviewed 25 criminal cases 2007. This character, evidence's defense gest appeal that about 1 in 6 criminal cases on attorneys vigorously resist the offers. The re- involves other bad evidence admitted under body sult is that there is a massive of case law uncharged admissibility misconduct. The uncharged frequent- misconduct is the most 8. "It is time to admit that in the real world of ly litigated evidentiary appeal. issue on In the prosecutions, will be key a WESTLAWsearch of num- mid-1980's prove (Other specific able to relevant instances of the bers offenses as evidence offense (Acts by employing general), showing accused's misconduct knowl- (Acts 'magic vocabulary edge), words’ of Rule malice and 371 intent or motive) 11,607 case, intermediate issue in the unless revealed state cases frame some
405 fact, McGinnis, jury. S.E.2d mislead the 193W.Va. inadmissible State v. (1994). court’s review of Because a trial “other acts” ensures there will be 404(b) ultimately appeal, merely are discretion an futile under Rule questions appellate Court has found wastes the resources of the ary, appeal rarely courts, litigants its discretion if not those of the that the trial court abused bad acts evidence. See their advocates. admitting the other find the trial this Court will often then S.E.2d mission of the other bad acts evidence shall be ror. n. 28. See ance which does not affect substantial criminal casе was “harmless ock, Criminal Any disregarded.”). Procedure error, defect, irregularity, at 312 (1996). Rule abused n. [1981] 52(a), If the Court does its hold that the ad (“Harmless Er W.Va, discretion, then error.” LaR 294, 312, 470 Rules of rights at 631 vari in a implication) sion of tion before the even that of an dant. ous admissions of “other acts” circular. Moreover, “overwhelming” more “overwhelming district This, additional overwhelming It places judge in the case of questionable turn, encourages guilt, prosecution weak evidence ease evidence” an inexorable admit, the indication value, clearly all argument the admis- the defen- offer, the avail- to create evidence, tempta- because errone- (or is protection able under the harmless error
E. doctrine. Equitable An Solution Second, the harmless error doctrine intellectually indefensible. The is harm- following agreement I am in with the com- frequently factually less error cases were says mentator who the context indistinguishable from those cases in which nothing prosecutions, there is 404(b) required Rule errors reversal. But “harmless” about the admission of other bad grounded reversals must be on discernible acts evidence. 404(b) law, not luck. When Rule error is name, Despite its the harmless error doc- clear, meaningful no distinction between 404(b) trine, at in the context of Rule least possi- “abusive” and “harmless error” is errors, anyone. is not “harmless” to ____ ble First, the harmless error doctrine Third, judicial purported application of the wastes resources. harmless error 404(b) justification of this doctrine is that it con- doctrine Rule errors is unfair to judicial preserving the defendant. The broad discretion and serves resources judges great grantеd infected Rule errors deference to trial convictions 404(b) evidence, other, in eases in which the admissible in the admission guilt together long acceptable evidence of the defendant’s is “over- list whelming.” justification purposes This is dubious at under which “other acts” evi- admitted, indicating may already remaining best. If the tilts guilt playing sharply otherwise “over- field defendant’s is so government’s applied whelming,” why then admit “other acts” favor. The alleged inclusionary pro- manner that place? evidence in the first such pensity is the for which the “need” for the other acts evidence should light may not be admitted. Without a be evaluated in issues prosecution. countervailing policy reversing clear other evidence available to the available, errors, overwhelming proof truly right If the defendant’s per- not to be convicted for “bad” then there is no need for admission son, charged, un- rather than for the erroneous “other acts” evidence. This meaningless. require much to necessary It is not too evidence serves distract "Admitting History: judge probative value of the Accused’s Criminal the trial believes that the 404(b),” substantially Temp.L.Rev. misconduct is out- with Rule Trouble weighed by prejudice waste of 250-51 time, Reed, jury.” Thomas J. confusion *12 judges exercise When a trial court has abused its discre- both that district excluding clearly erroneous “other care in tion admitted and irrelevant or acts” evidence... I hold bad acts would that reversal Moreover, proper in the interest of fairness to remand for trial should be territory automatic, what little these no matter how much evidence is protect carefully be Rules still should presented. Removing otherwise personal An individual’s free- guarded. protection errors from the of the harmless setting; is at stake dom prosecutors error rule would force and trial lesser, greater, adherence thus not dis- judges to limit the evidence to relevant evi- trict courts to the Federal Rules should be pertaining specific charge required. prosecutors indictment. It would force Yost, Stephanie supra, careful, 23 S.W.U.L.Rev. at judges trial to make more consistent 684-86. hopefully equitable more decisions about uncharged the admission misconduct in
I realize that I will never convince our criminal trials. to revert to the correct rule set Court back Miller, supra, out in State v. in 1915. respectfully I otherwise concur with the propose therefore that Rule majority’s decision. amended, directly through either jurisprudence, to eliminate Court’s safety prosecutors,
“harmless error” net that courts, upon
trial this Court have relied uphold upon based convictions admis-
sion of I am not misconduct.
advocating abrogation for the of the harmless rule, only
error its elimination from our Rule
404(b)jurisprudence.