In a criminal case in which a defendant is charged with having committed a sexual offense, or a civil case in which a claim is predicated on a party's alleged commission of a sexual offense, evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged. In such a case, evidence to rebut the proof of other crimes, wrongs, or acts, or an inference therefrom, may also be admitted.
Ariz. R. Evi. 404
Comment to 2021 Amendment
Rule 404(b) was amended effective January 1, 2021, to conform to the changes made to Federal Rule of Evidencethat took effect on December 1, 2020.
The language of Rule 404 has not been changed in any manner. [Text of comment eff. Jan. 1, 2012.]
Subsection (c) of Rule 404 is intended to codify and supply an analytical framework for the application of the rule created by case law in State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977), and State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973). The rule announced in Treadaway and McFarlin and here codified is an exception to the common-law rule forbidding the use of evidence of other acts for the purpose of showing character or propensity.
Subsection (1)(B) of Rule 404(c) is intended to modify the Treadaway rule by permitting the court to admit evidence of remote or dissimilar other acts providing there is a "reasonable" basis, by way of expert testimony or otherwise, to support relevancy, i.e., that the commission of the other act permits an inference that defendant had an aberrant sexual propensity that makes it more probable that he or she committed the sexual offense charged. The Treadaway requirement that there be expert testimony in all cases of remote or dissimilar acts is hereby eliminated.
The present codification of the rule permits admission of evidence of the other act either on the basis of similarity or closeness in time, supporting expert testimony, or other reasonable basis that will support such an inference. To be admissible in a criminal case, the relevant prior bad act must be shown to have been committed by the defendant by clear and convincing evidence. State v. Terrazas, 189 Ariz. 580, 944 P.2d 1194 (1997).
Notwithstanding the language in Treadaway, the rule does not contemplate any bright line test of remoteness or similarity, which are solely factors to be considered under subsection (1)(c) of Rule 404(c). A medical or other expert who is testifying pursuant to Rule 404(c) is not required to state a diagnostic conclusion concerning any aberrant sexual propensity of the defendant so long as his or her testimony assists the trier of fact and there is other evidence which satisfies the requirements of subsection (1)(B).
Subsection (1)(C) of the rule requires the court to make a Ruleanalysis in all cases. The rule also requires the court in all cases to instruct the jury on the proper use of any other act evidence that is admitted. At a minimum, the court should instruct the jury that the admission of other acts does not lessen the prosecution's burden to prove the defendant's guilt beyond a reasonable doubt, and that the jury may not convict the defendant simply because it finds that he committed the other act or had a character trait that predisposed him to commit the crime charged.
COMMENT TO ORIGINALRULE
State v. Superior Court, 113 Ariz. 22, 545 P.2d 946 (1976) is consistent with and interpretative of Rule 404(a)(2).
<Applicable to cases pending on and after that date, except civil cases as to which the final trial date is set to occur between December 1, 1997 and February 1, 1998 and criminal cases as to which the final trial date is set to occur between December 1, 1997 and January 15, 1998.>
Federal Rules of Evidence, Rule.