Scope of Admissible 404(b) Evidence No Greater In Sex Crime Cases

In State v. Grist, docket number 33652, the Idaho Supreme Court built on the foundation it created in State v. Field, 144 Idaho 559 (2007), and "clarified" prior case law by holding that "the scope of evidence that may properly be admitted pursuant to I.R.E. 404(b) is no greater in sex crime cases than it is for any other type of case." So, despite protestations to the contrary, there is no sex crime exception to 404(b). Rather, as in other types of cases, the admissibility of 404(b) evidence requires many findings by the trial court.

First, "the trial court must determine whether there is sufficient evidence to establish the other crime or wrong as fact." In vacating the conviction in Grist, the Court noted that the district court had failed to make this finding.

Second, the evidence must be relevant to a material and disputed issue concerning the crime charged. At a minimum, the jury must be reasonably able to conclude "that the act occurred and that the defendant was the actor."

Third, it must be admissible for a proper purpose, including corroboration of the testimony of a witness or to establish a common scheme or plan. However, the evidence must actually serve one of those two purposes, "without reliance on the impermissble theory of the defendant's propensity to engage in such misconduct." (emphasis added). In other words, 404(b) evidence may not be admitted "when its probative value is entirely dependent upon its tendency to demonstrate the defendant's propensity to engage in such behavior." In a further clarification, the Court noted that in order to meet this test, the evidence must be "relevant to prove ... a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, knowledge, identity, or absence of mistake or accident." In other words, the State must actually show a relationship between the 404(b) evidence and the crime charged. The necessary extent of that relationship was previously addressed in Field, where the Court focused on the importance of common ages of the 404(b) witness and complaining witness, actual prior incidents of abuse, and the similarity of the events. In vacating the conviction in Grist, the Court noted that the district court had not articulated what the probative value of the evidence actually was.

Finally, even if the evidence is probative for either corroboration of testimony or to show a common scheme or plan, the district court must still determine that it's probative value outweighs any unfair prejudice to the defendant. In order to properly address this issue, defense counsel should consider for which of the purposes the trial court has found the evidence is probative. If the trial court finds the evidence probative for corroboration of the complaining witness's testimony, it should be noted that in Field, the Supreme Court recognized that a seventeen-year-old "did not need as much corroboration to establish credibility as do younger children...." Thus, the probative value of corroboration evidence will be limited when the complainnig witness is older.

All in all, this opinion gives strong guidance to trial courts on how to properly analyze and scrutinize 404(b) evidence in sex crimes cases.

Here's the link: http://www.isc.idaho.gov/opinions/grist33652.pdf