Monday, May 30, 2011
Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Alaska, however, also has Alaska Rule of Evidence 404(b)(4), which provides that
In a prosecution for a crime involving domestic violence or of interfering with a report of a crime involving domestic violence, evidence of other crimes involving domestic violence by the defendant against the same or another person or of interfering with a report of a crime involving domestic violence is admissible. In this paragraph, "domestic violence" and "crime involving domestic violence" have the meanings given in AS 18.66.990.
So, how do Alaska courts apply Alaska Rule of Evidence 404(b)(4), and how many states have so-called domestic violence exceptions to the propensity character evidence proscription? These are the topics that I will address in this post.
To answer the first question, let's look at the recent opinion of the Court of Appeals of Alaska in Jackson v. State, 2011 WL 2084075 (Alaska App. 2011). In Jackson, Albert Eric Jackson was convicted of second-degree assault for causing serious physical injury to his former girlfriend, Sheena Cundiff. After he was convicted, Jackson appealed, claiming that the trial court erred in allowing the State to introduce evidence pursuant to Alaska Rule of Evidence 404(b)(4), including testimony from Jackson's former girlfriend, Deshia Whisamore, about Jackson's prior acts of domestic violence.
In addressing this argument, the court noted that in Bingaman v. State, 76 P.3d 398 (Alaska App. 2003), it outlined several factors to guide trial courts in applying these rules ofevidence in cases in which the government seeks to admit evidence of a defendant's other crimes or bad acts:
(1) the strength of the government's evidence that the defendant actually committed the other acts; (2) the character trait the other acts tend to prove; (3) whether this character trait is relevant to any material issue in the case; (4) how seriously this issue is disputed; (5) whether litigation of the defendant's other acts will require an inordinate amount of time; and (6) whether the evidence of the defendant's other acts will lead the jury to decide the case on improper grounds.
Moreover, "[t]he trial judge must conduct this balancing test and must explain its decision on the record. But trial judges are not required explain their analysis of each Bingaman factor in every case." And, the Court of Appeals found that the trial court complied with this procedure because
the trial judge expressly stated his conclusions on several of these factors. The judge concluded the State's evidence of the prior incident was strong, the incident was similar to the charged offense, the incident was relevant to the issue of identity, the testimony would not be lengthy, and there was "little likelihood that a jury would consider the case on improper grounds. The judge's findings on these factors are supported by the record....Given this record, it was reasonable for the judge to conclude that there was sufficient evidence that the prior act occurred.
So, how prevalent are these domestic violence exceptions? The most recent cataloging of such exceptions that I could find was in Tom Lininger's fantastic article, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L. Rev. 687, 701 n.44 (2003),in which he notes that
Several states have created what is in effect a domestic violence exception to the ban on propensity evidence. See ALASKA R. EVID. 404(b)(4) (admitting evidence of prior domestic violence against same victim, or evidence of prior interference with a report of a crime involving domestic violence);CAL. EVID. CODE § 1109 (admitting evidence of prior domestic violence to show propensity); 725 ILL. COMP. STAT. 5/115-20 (admitting evidence of prior domestic violence against same victim); LA. R. EVID.404(b)(2) (allowing evidence of prior domestic violence to show violent propensity of abuser where victim is prosecuted for attacking abuser, and victim raises claim of self-defense); see also ARIZ. R. EVID. 404(c) (admitting evidence of prior sexual assault to show propensity, where defendant is now charged with sexual assault); FLA. R. EVID. 404(2)(b) (admitting evidence of prior child molestation to show propensity, where defendant is now charged with child molestation).
That said, he also notes that
At least three states have considered and rejected such proposals.
In 2002, the Michigan Legislature considered, but did not ultimately adopt, a bill that would have admitted evidence of prior domestic violence to prove propensity in a prosecution of domestic violence. S.B. 733, 2002 Leg. (Mich. 2002), available at http://www.bar.org/legislative.positions.htm (the Michigan State Bar opposed this proposal). In 2001, the Oregon Legislature refused to adopt a bill that would have emulated CAL. EVID. CODE § 1109. See supra note 29 and accompanying text. In 1999, the New York Legislature refused to adopt a provision of Governor Pataki's proposed Sexual Assault Reform Act that would have freely admitted propensity evidence in sexual assault cases.
So, that was the lay of the land as of 2003. Are any readers aware of any developments regarding domestic violence exceptions in the last several years?