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Univ. of South Carolina School of Law

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Tuesday, September 30, 2008

Punch-Drunk Love: Case Reveals 3 Differences Between Hawai'i And Federal Rule Of Evidence 404(b)

The recent opinion of the Supreme Court of Hawai'i in State v. Pond, 2008 WL 4381673 (Hawai'i 2008), reveals that there are three key differences between Hawai'i Rule of Evidence 404(b) and Federal Rule of Evidence 404(b).  In Pond, Kevin Pond appealed from a judgment convicting him of the offense of abuse of family or household member and interference with reporting an emergency or crime.  That household member was Pond's girlfriend, Miae Russell, and Pond sought to prove at trial, inter alia, that Russell had previously assaulted him to help establish his claim of self-defense, in which he asserted that Russell was drunk and punched him before he responded in kind.  The problem for Pond was that he did not notify the court or the prosecution of this alleged assault until minutes before his trial was scheduled to begin, at which time he moved for a continuance.  The court rejected this motion, finding that Pond had failed to comply with the pre-trial notice provisions of Hawai'i Rule of Evidence 404(b).

Hawai'i Rule of Evidence 404(b) states 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.  It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.  In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial."

Meanwhile, Federal Rule of Evidence 404(b) indicates 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."

As the Supreme Court of Hawai'i noted, the pre-trial notice requirement of Hawai'i Rule of Evidence 404(b) thus differs from the pre-trial notice requirement of its federal counterpart in three regards:

     (1) the Federal Rule merely requires prosecutors to provide pre-trial notice while the Hawaii Rule requires any proponent of Rule 404(b) evidence to provide pre-trial notice;

     (2) the Federal Rule requires "a request by the accused" while there is no request requirement in the Hawaii Rule; and

     (3) the Hawaii Rule requires a more detailed form of notice.

Thus, if Pond's case were governed by the Federal Rules of Evidence, he would not have needed to provide pre-trial notice of his intention to introduce evidence concerning Russell's alleged assault of him, but he was required to do so under Hawai'i Rule of Evidence 404(b), and his failure to do so foreclosed the introduction of this evidence.

Pond did try to argue that the pre-trial notice requirement of Hawai'i Rule of Evidence 404(b) violated his rights under the Confrontation Clause (and, seemingly, the Compulsory Process Clause), but the Hawai'i Supremes rejected the argument, concluding that the Rule's policy of reducing surprise and promoting early resolution on the issue of admissibility justified the limitations of the defendant's right to present the evidence.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/09/the-recent-op-2.html

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