"Other Crimes" and Other People

May the prosecutor at a federal criminal trial introduce evidence that the defendant has previously committed another crime?

Federal Rule of Evidence 404(b), of course, provides that this type of evidence is inadmissible if the only reason it is being introduced is to show the propensity of the defendant to commit crimes. The rule then goes on to provide that such evidence may be admissible if it is being introduced for another purpose, such as proof of motive, opportunity or intent.

But what if the shoe is on the other foot? What if it is the defense that is trying to use "other crimes" evidence to show that a third party, not the defendant, is actually guilty of the crime charged? Should Rule 404(b) limit the defense in the same way it limits the prosecution? Or should the defendant's constitutional right to present a defense result in a more lenient test for admissibility?

Courts have dubbed this the "reverse 404(b) issue." A recent decision of the 6th U.S. Circuit Court of Appeals illustrates the complexity of the arguments involved. U.S. v. Lucas, 357 F.3d 599 (6th Cir. 2004).

Robin Lucas loaned her rental car to Morell Presley, a convicted felon. Although Presley claimed he needed the car for only one quick errand, he ended up keeping it for five hours. When Lucas was driving the car later that day, the police pulled her over for speeding. The police spotted two bags wrapped in cellophane and stuck under the front driver's seat. They later determined that the bags contained 2.2 kilograms of cocaine. Lucas was charged with possession with intent to distribute.

At trial, Lucas denied any knowledge of the cocaine. The defense theory was that Presley (whose whereabouts were now unknown) had obtained the cocaine that afternoon. In support of this theory, the defense attempted to introduce the absent Presley's prior conviction for cocaine trafficking. The defense conceded that the prior conviction was being offered for the sole purpose of proving Presley's propensity to commit a cocaine offense.

The trial judge refused to allow this evidence, and Lucas was subsequently convicted.

On appeal, Lucas challenged the trial court's exclusion of Presley's prior conviction.

The 6th Circuit affirmed the trial court's decision. In an opinion that drew a special concurrence on the reverse Rule 404(b) issue, the majority first held that the rule is not limited to the prior acts of only the defendant. It noted that the language of the rule broadly 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." (Emphasis added.) The majority found it significant that the rule applies to the general category of "character of person" rather than merely "character of the accused."

Thus, the majority simply applied the standard analysis under Rule 404(b). It held that "prior bad acts are generally not considered proof of any person's likelihood to commit bad acts in the future." It found that none of the exceptions of Rule 404(b) were applicable and that the evidence was offered only to show Presley's propensity to commit crime.

And even if it did come under one of the exceptions, the trial court in its application of Rule 403 did not abuse its discretion in finding that the prejudicial effect of this evidence far outweighed any probative value.

U.S. District Judge Gerald E. Rosen of the Eastern District of Michigan, sitting by designation, disagreed with this analysis in his separate concurring opinion. He began by criticizing the majority for failing to consider the underlying policy behind Rule 404(b): the common law's specific interest in protecting a defendant from being convicted based on evidence merely showing a propensity to commit crime.

He cited three well-known treatises for the proposition that the focus of the common-law policy was on protecting defendants from convictions based on unfair prejudice -- not protecting persons in general. See Wigmore, Code of Evidence, 3d ed., p. 81; Wright & Graham, Federal Practice and Procedure: Evidence, sec. 5239, pp. 436-39; Weissenberger's Federal Evidence, 3d ed., sec. 404.12 (1998).

Thus, he wrote, Rule 404(b) simply has no relevance to a situation in which the other-crimes evidence is being offered against an absent third party.

Rosen conceded that the majority's reading of Rule 404(b) was supported by both the 7th and 9th Circuits. See Agushi v. Duerr, 196 F.3d 754 (7th Cir. 1999); U.S. v. McCourt, 925 F.2d 1229 (9th Cir. 1991). However, he noted that five other circuits -- the 1st, 2d, 3d, 5th and 11th -- all find Rule 404(b) to be inapplicable to evidence of acts of third parties.

He approvingly cited the 2d Circuit's observation that "the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword." U.S. v Aboumoussallem, 726 F.2d 906, 911 (2d Cir. 1984). He also agreed with the 3d Circuit that the test for admissibility of such evidence should be merely whether it is relevant under Rule 401 and not unduly prejudicial under Rule 403. U.S. v Stevens, 935 F.2d 1380, 1404-05 (3d Cir. 1991).

Based on this test, Rosen said he would have allowed the defendant here to introduce the evidence. Yet he agreed with the majority that the trial judge's decision to reject the evidence should be affirmed because the existence of the circuit split meant that the ruling did not quite rise to an abuse of discretion.

Rosen and the majority of circuits make a convincing case that the presumption of innocence in favor of the defendant should augur in favor of an expansive definition of what is relevant evidence for the defense. With the large number of circuits weighing in on both sides of this question, we may very well see the U.S. Supreme Court provide a definitive answer on this issue within the next few years.