Propensity or Risk: New Jersey Court Allows Evidence of Parent's Past Conduct in Abuse Case Despite Rule 404(b)

In New Jersey Div. of Youth and Family Services v. I.H.C., --- A.2d ----, 2010 WL 3033928 (N.J. Super. A.D. Aug. 5, 2010), a law guardian appealed on behalf of three children, arguing that the family court wrongly ordered the children returned to the home of their allegedly abusive and neglectful parents.  In the family court, the law guardian stated that among other conduct, the abuse of the children's mother by their father (including some abuse in the presence of at least one of the children) subjected the children to risk of harm justifying removal from the home.

Among other evidence, the law guardian presented testimony of an ex-wife of the father concerning abuse he committed against her and their children during their marriage, acts which led to the father's criminal conviction for making terroristic threats.  Id. at 21-24 [pin cites for I.H.C. refer to the opinion PDF on the court website].  The family court disregarded the ex-wife's testimony pursuant to New Jersey Rule of Evidence 404(b), which prohibits most "evidence of other crimes, wrongs, or acts ... to prove the disposition of a person in order to show that such person acted in conformity therewith."  The Superior Court of New Jersey, Appellate Division, reversed, holding "that evidence of prior domestic violence committed by defendant-father against his ex-wife and the two children of a prior marriage was admissible in this case to prove the risk of harm to these children."

Before addressing the evidentiary issue, I should note that "significant litigation challenges the notion that witnessing domestic violence causes permanent emotional harm in the young."  See N.J. Div. of Youth & Fam. Servs. v. S.S., 855 A.2d 8, 15-16 (N.J. Super. A.D. 2004); Nicholson v. Scoppetta, 820 N.E.2d 84 (N.Y. 2004) (answering questions certified from Second Circuit as part of protracted litigation concerning children removed from homes of battered parents); see also Marcy L. Karin, Changing Federal Statutory Proposals to Address Domestic Violence at Work, 74 Brook. L. Rev. 377, 381 & n.11 (2009) (discussing "policies that systematically remove the children of victims of domestic violence because the victims 'failed to protect' the children by 'allowing' them to witness the abuse").  The issues raised in such cases are beyond the scope of this post.

New Jersey Rule of Evidence 404(b) provides, in material part, that:

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The rule is substantially similar to Federal Rule of Evidence 404(b) for purposes of this case.  N.J.R.E. 404(b) and its federal counterpart exist primarily "to guard a defendant's right to a fair trial by avoiding the danger that a jury might convict the accused because the jurors perceive him to be a bad person."  I.H.C. at 25.

As the federal advisory committee notes put it: "No mechanical solution is offered," and a determination of whether to admit evidence of other crimes for a proper purpose depends on "whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403."

Here, the New Jersey court distinguished use of evidence of prior bad acts for the purpose of proving a defendant's propensity to commit conduct like that charged in a particular case and use of such evidence to establish that children are in danger.  "We now hold that in civil proceedings for the protection of a child, a parent or guardian's past conduct can be relevant and admissible in determining risk of harm to the child."  I.H.C. at 28.  The court provided multiple reasons for its decision and explained its scope:

The trial judge understood the significance of the experts' testimony but concluded that evidence of the risk that defendant-father would again engage in domestic violence was essentially synonymous with evidence of his propensity or disposition to commit domestic violence. The judge concluded that the evidence was therefore prohibited by the language of N.J.R.E. 404(b) when based on prior crimes or bad acts.

The abuse or neglect statutes, however, expressly require that the court assess risk to the children. … By the language of those statutes, the Legislature has made risk of harm, not just past injury or acts, relevant to determining whether a child is an abused or neglected child. Consequently, the risk, or pre-disposition, that a defendant may harm the children is expressly admissible in an abuse or neglect case despite the general evidentiary prohibition contained in N.J.R.E. 404(b).

We also note that in abuse or neglect cases, a judge rather than a jury hears the evidence and makes findings of fact. One of the primary reasons for the prohibition of character evidence to show disposition, namely, misuse of that evidence by lay jurors, is not present in such a non-jury case. …

Our conclusion does not mean that N.J.R.E. 404(b) should never be applied in abuse or neglect cases to determine admissibility of other crimes or bad acts evidence. … We only hold that where expert testimony in an abuse or neglect case provided support for a finding that defendant's prior acts of domestic violence show his disposition to commit such violence, the court should have admitted that evidence in assessing risk of harm to the children.

Id. at 31-33.  The law guardian asked the New Jersey court to make a fine distinction between concluding that a prior criminal probably committed a specific crime and concluding that a prior abuser is probably a danger to his children.  Guidance from the legislature, which enacted statutes anticipating the question, helped the court to decide that the distinction was valid.

  - Ben Trachtenberg