As discussed here, the Third Circuit noted several months ago that Federal Rule of Evidence 404(b) is the most oft-litigated rule of evidence. Yesterday, the Supreme Court of New Jersey provided its latest gloss on New Jersey’s counterpart to that rule, New Jersey Rule of Evidence 404(b), in the context of a drug possession crime. The Court’s decision is the latest indication that courts are loathe to countenance the admission of evidence solely for the purpose of propensity, a view that is largely consistent with the policy aim behind both Rules 404(b).
The facts are simple. Defendant was an assistant manager at a restaurant. On October 7, 2008, another restaurant employee noticed a clear packet fall out of defendant’s shirt. Another employee kicked the packet under a counter and retrieved it. She then gave the packet to the employee who first noticed it fall out. This employee examined the packet and said it contained “chunks of something” and contacted the general manager of the restaurant. The police were then called. They met with the employee in the back parking lot and field tested the substance in the packet. They determined that the packet contained cocaine.
A policeman asked defendant to come into the manager’s office in the back of the restaurant. The policeman questioned defendant. When initially asked what the substance was, defendant responded that “she did not know.” The policeman then read her her Miranda rights.
After (at least according to the policeman – the Court passed on the Miranda question later in the opinion, because the Rule 404(b) issue was dispositive) waiving her rights under Miranda, defendant made inculpatory statements. The policeman asked again what the substance was and she stated it was crack. As to how she knew, defendant stated that “she had been in trouble for it in the past so she knew what it looked like.” The policeman asked her the last time she used crack, and she replied “about two days ago.” She also offered that the previous evening, she drank alcohol and took a Vicodin which she indicated was not legally prescribed.
Defendant was arrested and charged with third-degree possession of cocaine under N.J.S.A. 2C:35-10a(1). At a pre-trial hearing, defendant made Miranda arguments, which the motion judge rejected. At trial, defendant moved to suppress her statements regarding her prior crack use. The judge denied the motion but gave a limiting instruction to the jury to the effect that the jury should only use the inculpatory statements only as “evidence of consciousness of guilt on the defendant’s part regarding the possession of [a controlled substance].” The jury found defendant guilty, and the Appellate Division affirmed.
The Supreme Court unanimously reversed the conviction in an opinion by Judge Rodriguez. The Court quoted Rule 404(b), which states that “prior bad act” evidence is generally inadmissible, unless proffered for “proof of motive, opportunity, intent, preparation, plan, knowledge, identify or absence of mistake or accident when such matters are relevant to a material issue in dispute.”
The Court then reiterated the four-prong test it had set forth in State v. Cofield, 127 N.J. 328 (1992) governing the admissibility of 404(b) evidence. Prongs 1, 3, and 4 are relevant here.
Prong 1 is that the “evidence of the other crime must be admissible as relevant to a material issue.” The Court held that the State had failed this prong, because the evidence was not relevant to a material issue. Indeed, the identity of the substance found, cocaine, was simply not at issue. The field test confirmed the identify of the drugs. Defendant’s statement that the substance appeared to be cocaine was not admissible for any proper purpose under Rule 404(b), for it did not address a “material issue in dispute.” Critically, defendant’s recognition of the substance in the packet as cocaine was “suggestive of defendant’s propensity to use or possess drugs,” and thus impermissible under 404(b). Importantly—and key to the Court’s analysis—was that defendant never disputed that the substance field tested as crack cocaine.
Prong 3 requires that the evidence of the other crime be clear and convincing. Judge Rodriguez easily concluded that the prong was not met based on the policeman’s testimony alone.
Prong 4 requires that the probative value of the evidence not be outweighed by the prejudice. “The statements that defendant admitted to prior crack cocaine use and to using crack cocaine, alcohol, and Vicodin two days prior to the incident at the restaurant may lead jurors to the conclusion that defendant must have possessed crack cocaine on this occasion because she has a propensity for having and using illegal substances generally and cocaine specifically. That is precisely the sort of reason for which N.J.R.E. 404(b) evidence cannot be introduced.” The Court did not pass on the Miranda issue and remanded for retrial.
The takeway? Rule 404(b), federal or state, has teeth. Judges are loath to let in “prior bad act evidence” for an improper purpose. The ruling is a cautionary tale for seemingly juicy propensity evidence. Such evidence is largely barred for the simple reason that a defendant stands to lose his or her civil rights based on the crimes charged in the underlying indictment, not for past misdeeds that have little or no evidential bearing on the crime actually charged.