Identity Crisis: Oregon Court Admits Prior Crimes Evidence to Show Identity

The Court of Appeals of Oregon recently distinguished, for purposes of admitting evidence of prior crimes committed by a defendant, between the defenses of "The alleged crime never happened" and "You've charged the wrong person."  If a defendant asserts that the alleged crime never occurred, then evidence of similar prior acts by the defendant is inadmissible "propensity" evidence.  But if the defendant argues that someone other than the defendant did the deed, then evidence of the defendant's prior conduct may be admitted to prove "identity" of the perpetrator.

In State v. Pitt, --- P.3d ----, 2010 WL 3239406 (Or. App. Aug. 18, 2010), the prosecution charged Douglas Pitt with child molestation.  At trial, the jury heard "evidence of misconduct not charged in [the] indictment, including his earlier sexual abuse of the victim and her same-aged cousin."  The defendant appealed his conviction, arguing that the evidence was improperly admitted.  The appeals court affirmed, relying in part on the nature of Pitt's defense at trial.

Pursuant to Oregon Evidence Code 404(3),

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted 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.

The rule is similar to Federal Rule of Evidence 404(b).

As summarized by defense counsel, Pitt's "defense is and has always been that this didn't happen, that he didn't do it, if it did happen, it wasn't him.  And so the question of intent is really not at issue in this case."  The court disagreed, stating that had Pitt relied solely on the "this didn't happen" theory, then his prior acts would have been inadmissible.  Because, however, he speculated (among other theories) "that the victim's initial identification of her abuser as 'Doug' was ambiguous, because Doug is not only defendant's name but also the name of one of the victim's relatives," Pitt placed the identity of the abuser into dispute, converting Pitt's prior abuse of the victim and her cousin from improper propensity evidence into evidence "admissible for other purposes, such as proof of ... intent."

The court carefully distinguished cases like Pitt's from those in which defendants advance "no argument that someone else had perpetrated acts of abuse against the victims."  In such cases, prior bad acts by defendants would not be admissible.  Pitt, at n.2.  Here, the court concluded "that, because one of defendant's theories was that someone else was the perpetrator of any abuse of the victim, the uncharged misconduct evidence was relevant to a contested fact, namely, the accuracy of the victim's identification of her abuser."

  - Ben Trachtenberg