EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, October 9, 2013

Trouble Afoot?: Supreme Court of Indiana Finds Foot Fetish Evidence Inadmissible Under Rule 404

Indiana Rule of Evidence 404 reads as follows:

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a)   Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1)    Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

(2)    Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3)    Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.

(b)   Other Crimes, Wrongs, or Acts. 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, 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 pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

So, let's say that a husband is on trial for his wife's murder and that "when her body was discovered, her pants were pulled down, her shoes were off, and her feet were bruised." Under any of the above character evidence rules, should the defendant be able to present evidence that an alleged alternate suspect had “four felony convictions for robbery in which women's shoes were the target and that [the alternate suspect had] an admitted foot fetish and shoe fetish?” According to the Supreme Court of Indiana in Camm v. State, 908 N.E.2d 215 (Ind. 2009), the answer is "no."

The Camm case was brought to my attention by this article, which claims that the case was wrongfully decided. In Camm, the alternate suspect, Charles Boney, was indisputably at the crime scene. And, according to the author of the article, the court got the case wrong because evidence of Boney's prior crimes was admissible to prove motive rather than criminal propensity. 

I disagree. Evidence of past crimes is only admissible to prove motive when the past crime would give the defendant a specific motive to harm the victim, e.g., if a homicide victim had previously testified against the defendant at his arson trial. But in Camm, the defense was simply trying to prove that Boney had a shoe fetish, which is mere propensity character evidence. 

Moreover, the evidence clearly wasn't admissible as m.o. evidence because the prior convictions were for robberies and not murders. As the court noted,

Boney's prior crimes are not the same crimes as the charged crimes here, nor are they “strikingly similar.” The few similarities, such as “targeting women ... around their cars,” and signs of a struggle between the assailant and the victim, do not make the murders of the defendant's family a “signature crime.”

The defendant's claim that Boney's alleged foot and shoe fetish was the motive for these crimes fails because there is no evidence connecting these crimes to a foot or shoe fetish beyond the wife's shoes being off and her feet being bruised. In these circumstances, the defendant's contention is really that we should infer guilt on Boney's part because of his sexual compulsion for feet and shoes. This is the “forbidden inference” prohibited by Evidence Rule 404—that evidence of a person's character or character trait, such as crimes, wrongs, or acts, cannot be used to show action in conformity with that character or character trait—and by this Court's jurisprudence. Evidence regarding Boney's criminal history and alleged foot and shoe fetish was properly excluded under the Rules of Evidence.



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