Bill Cosby and 404(b): Uncharged Conduct

The New York Times reports that a Pennsylvania prosecutor retrying him on sexual assault charges wants to introduce allegations of uncharged assaults. At the first trial, ending in a mistrial, the judge excluded such testimony under Rule 404(b).

The Times explains:

Ordinarily, prosecutors cannot introduce evidence or accusations of prior bad behavior from other cases because it is viewed as too prejudicial for a jury as it considers the facts of the case before it.

Misapprehending 404(b)

Federal Rule 404(b) reads:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

The idea behind the rule is that a person ought to be convicted only if there is proof beyond a reasonable doubt that the person committed the particular crime for which he is on trial. If the court were to willy-nilly allow the prosecution to tell the jury about how the defendant committed a lot of crimes in the past, jury could very well convict the defendant because they simply thought he was a criminal.

The rule is designed to protect against that kind of result. But the uninitiated, such as The New York Times, often think the rule afford a great deal of protection for the defendant.

The rule is often described as a rule of exclusion: the evidence does not come into a trial unless the prosecution can give the judge a very good explanation about how it is permitted under 404(b)(2).

Exactly Backwards

At least in the federal system – particularly the Fourth Circuit – and in North Carolina, the rule is a rule of inclusion: relevant evidence is coming in, even relevant of prior bad acts or crimes, so long as the evidence isn’t merely being used to say the defendant is a bad human being.

The Fourth Circuit has held that Rule 404(b) is an “inclusive rule.” United States v. Gray, 405 F.3d 227, 239 (4th Cir. 2005).

Evidence of “other crimes” is admissible under Rules 404(b) and 403 if four conditions are satisfied. First, “[t]he evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. In this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes.” Second, “[t]he act must be necessary in the sense that it is probative of an essential claim or an element of the offense.” Third, “[t]he evidence must be reliable.” Finally, “the evidence’s probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the fact finding process.”

(quoting U.S. v. Queen)

North Carolina similarly has a very expansive view of 404(b) that favors prosecutors being permitted to tell the jury about uncharged and sometimes very old conduct that, wink! wink!, is not being used to smear the defendant, your honor.

Where There’s Smoke, There’s Fire

Rule 404(b)’s supposed protections for the defendant often don’t amount to much. Prior bad conduct is usually coming in. It is kind of remarkable and not a little bit impressive that the trial judge in Cosby’s first trial barred the evidence from being admitted at trial.

He probably wanted a clean trial that wouldn’t result in appellate litigation over 404(b) evidence, even though, I suspect, Pennsylvania appellate courts rarely overturn convictions on the basis of Rule 404(b) rulings.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.