• Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
• Indiana Evidence Rule 404(b) provides that evidence of other crimes, wrongs, or acts of a defendant is not admissible to prove the character of the defendant in order to show action in conformity therewith.
Baker v. State, 997 N.E.2d 67, 70 (Ind. Ct. App. 2013)
Rationale
• Rule 404(b) precludes the admission of other crimes or bad acts in order to show circumstantially that a person charged with a criminal offense has a propensity to commit criminal acts and therefore is more likely to have committed the crime charged. The so-called “propensity rule” prohibits evidence of prior criminal acts admitted solely to create the “forbidden inference” that because the defendant committed prior criminal acts, he is more likely to have committed the act charged.
Williams v. State, 983 N.E.2d 661, 666 (Ind. Ct. App. 2013)
See Baker v. State, 997 N.E.2d 67, 70 (Ind. Ct. App. 2013)(citing Goldsberry v. State, 821 N.E.2d 447, 455 (Ind. Ct. App. 2005))(“The well-established rationale behind Evidence Rule 404(b) is that the jury is precluded from making the forbidden inference that the defendant had a criminal propensity and therefore engaged in the charged conduct.”)
Scope of the general rule
• Although Evid. R. 404(b) has been primarily applied in the context of prior criminal acts, its application is not limited thereto. The rule speaks broadly in terms of “crimes, wrongs or acts.” In the context of Federal Rule of Evidence 404(b), this language has been interpreted as pertaining to any conduct of the defendant which may bear adversely on the jury’s judgment of his character. Because the Indiana rule mirrors its federal counterpart, we adopt this broad interpretation of the rule’s scope.
Kimble v. State, 659 N.E.2d 182, 184 n. 5 (Ind. Ct. App. 1996), trans. denied
• “Innocuous, legal behavior does not present the concerns Rule 404(b) was designed to address, and so need not be subject to such scrutiny.”
Allen v. State, 743 N.E.2d 1222, 1232 (Ind. Ct. App. 2001), reh’g denied, trans. denied(quoting 12 Robert L. Miller, Jr., Indiana Practice § 404.207 (2d ed. 1995))
See, e.g., Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App. 2008), reh’g denied, trans. denied(“[T]here is no indication here that [the defendant] behaved in any criminal or improper manner when he was previously seen in possession of a steak knife. We therefore conclude that Rule 404(b) does not apply to the evidence that [the defendant] had previously been seen in possession of a steak knife.”)
• [The defendant’s] claims are easily dealt with because they are not evidence of other crimes, wrongs, or acts for 404(b) purposes. When [the defendant] said he wanted [the victim] dead, wished she was dead, or that he would like to just go over there and shoot her, he was making a statement about his state of mind at the time. To state what one is feeling, as opposed to a direct threat to the victim, is not a “bad act” as such.
Hicks v. State, 690 N.E.2d 215, 221 n. 11 (Ind. 1997)(some quotation marks omitted)
Proving that the defendant committed the prior act
• [T]here must be sufficient evidence at trial to support a finding by the jury that the accused committed the similar act for it to be admissible under F.R. Evid. 404(b). Indiana law is in accord with this requirement.
Clemens v. State, 610 N.E.2d 236, 242 (Ind. 1993), reh’g denied(citing Huddleston v. United States, 485 U.S. 681, 690 (1988))
• However, direct evidence that the defendant perpetrated the prior bad act is not required.
Clemens v. State, 610 N.E.2d 236, 242 (Ind. 1993), reh’g denied
• Nor is testimony by the victim of the prior bad act required.
Clemens v. State, 610 N.E.2d 236, 242 (Ind. 1993), reh’g denied(citing Watkins v. State, 528 N.E.2d 456, 458 (Ind. 1988))
• “[S]ubstantial circumstantial evidence of probative value” is sufficient . . . .
Clemens v. State, 610 N.E.2d 236, 242 (Ind. 1993), reh’g denied(quoting Hill v. State, 445 N.E.2d 994, 996 (Ind. 1983))
• There must be sufficient proof from which a reasonable jury could find the uncharged conduct proven by a preponderance of the evidence.
Camm v. State, 908 N.E.2d 215, 224 (Ind. 2009), reh’g denied(citing Clemens v. State, 610 N.E.2d 236, 242 (Ind. 1993), reh’g denied)
Exceptions to the general rule
• This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
• Evidence Rule 404(b) allows the introduction of evidence of other crimes and wrongs for purposes other than proving propensity to commit the charged crime.
Thompson v. State, 15 N.E.3d 1097, 1101 (Ind. Ct. App. 2014), reh’g denied
• For information about using prior crimes, wrongs, or other acts to prove motive, please review To Prove Motive.
• For information about using prior crimes, wrongs, or other acts to prove intent, please review To Prove Intent.
• For information about using prior crimes, wrongs, or other acts to prove plan, please review To Prove Plan.
• For information about using prior crimes, wrongs, or other acts to prove knowledge, please review To Prove Knowledge.
• For information about using prior crimes, wrongs, or other acts to prove identity, please review To Prove Identity.
• For information about using prior crimes, wrongs, or other acts for other purposes, please review Other Permissible Purposes.
Two-pronged test for admissibility
• To be admissible under Evidence Rule 404(b), the evidence must be relevant to some matter other than the defendant’s propensity to commit crimes and the prejudicial effect of the evidence must not substantially outweigh its probative value pursuant to Indiana Evidence Rule 403.
Thompson v. State, 15 N.E.3d 1097, 1101 (Ind. Ct. App. 2014), reh’g denied(citing Berry v. State, 715 N.E.2d 864, 867 (Ind. 1999))
See Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997)(“In sum, the standard for assessing the admissibility of 404(b) evidence in Indiana is: (1) the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act; and (2) the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403.”)
Cf. Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009), reh’g denied(quotation marks and citations omitted)(“The law governing the admissibility of specific acts evidence for other purposes requires a trial court to make three findings. First, the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act. Second, the court must determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act. And third, the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403.”)
• The analysis of admissibility under Rule 404(b) incorporates the relevancy test of Rule 401 and the balancing test of Rule 403.
Thompson v. State, 15 N.E.3d 1097, 1102 (Ind. Ct. App. 2014), reh’g denied(citing Allen v. State, 720 N.E.2d 707, 711 (Ind. 1999))
• When inquiring into relevance, the court may consider any factor it would ordinarily consider under Rule 402. These may include the similarity and proximity in time of the prior bad act to the charged conduct, and will presumably typically include tying the act to the defendant. But these factors are simply illustrative of the many aspects that may, depending on the context, be required to show relevance.
Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997)
• Trial courts may consider a broad range of factors in balancing probative value against the risk of unfair prejudice, including the similarity between the past crime and the charged crime.
Ceasar v. State, 964 N.E.2d 911, 917-18 (Ind. Ct. App. 2012), trans. denied(citing Saunders v. State, 848 N.E.2d 1117, 1123 (Ind. Ct. App. 2006), trans. denied)
Notice
• On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice.
• Reasonable notice of intent to offer evidence of other crimes, wrongs, or acts is a prerequisite for admissibility.
Hatcher v. State, 735 N.E.2d 1155, 1158 (Ind. 2000)(citing Abdul-Musawwir v. State, 674 N.E.2d 972, 975 (Ind. Ct. App. 1996), trans. denied)
• The defendant has the burden to make a “reasonably understandable and sufficiently clear” request for such notice from the State.
Hatcher v. State, 735 N.E.2d 1155, 1158 (Ind. 2000)(quoting Abdul-Musawwir v. State, 674 N.E.2d 972, 975 (Ind. Ct. App. 1996), trans. denied)
• [T]here is no “‘hard and fast’ rule governing the time period in which the State should respond to an appropriate request under 404(b).”
Hatcher v. State, 735 N.E.2d 1155, 1158 (Ind. 2000)(quoting Dixon v. State, 712 N.E.2d 1086, 1091 (Ind. Ct. App. 1999))
• While no set rule governs when notice must be given in order to be reasonable, in United States v. French, 974 F.2d 687, 694-95 (6th Cir.1992), cert. denied, 506 U.S. 1066 (1993), the Sixth Circuit held that the trial court did not abuse its discretion by regarding notice one week before trial as reasonable.
Hatcher v. State, 735 N.E.2d 1155, 1158 n. 2 (Ind. 2000)
• The reasonableness of the State’s notice is not merely a function of its relation in time to either the defendant’s request for notice or the date of trial. Determining whether the State’s notice was reasonable requires an examination of whether the purpose of the notice provision was achieved in light of the circumstances of a particular case. The purpose of the reasonable notice requirement in Rule 404(b) “is to reduce surprise and to promote the early resolution of questions of admissibility.”
Hatcher v. State, 735 N.E.2d 1155, 1158 (Ind. 2000)(quoting Abdul-Musawwir v. State, 674 N.E.2d 972, 975 (Ind. Ct. App. 1996), trans. denied)(footnote omitted)
See Dixon v. State, 712 N.E.2d 1086, 1091 (Ind. Ct. App. 1999)(“[T]he circumstances of the particular case should govern whether the advance notice provided by the State to defense counsel is reasonable.”)