Lecture Notes: Character Evidence: Nonpropensity Uses

FRE 404(a) excludes evidence of character when its only purpose is to prove disposition. It does not exclude the same evidence when is offered for some other purpose. FRE 404(b) emphasizes this fact by referring to “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  This list not exhaustive. Indeed, inasmuch as FRE 404(a) only deals with propensity evidence, the list is not even necessary.

Problem 1. Evidence of the weapons is not be admissible on the theory that people who possess such weapons are not law abiding and hence are more likely to be engaged in illegal drug trade. The evidence might be admitted, however, on the theory that these weapons are used in the drug trade -- that they are part of the conspiracy itself.

Problem 2. The similarities in the robberies help identify B & C as the robbers of the Asheville bank. A sufficient degree of similarity makes the evidence admissible as the "signature" of the robbers. Are the similarities here sufficient?

The "No-accident" Theory (Doctrine of Chances)

In Makin v. Attorney-General [1894] App. Cas. 57 (P.C. 1893), John and Sarah Makin were indicted for and convicted of two murders in Australia. The evidence against them included testimony about the remains of 12 infants found in places where the Makins used to live.  On appeal from the Australian Supreme Court to the Privy Council, the prosecution argued that "It was the general . . . rule of law to admit such evidence to defence of accident . . . . [A]ny evidence is admissible of any acts of doings of the person accused if such acts or doings are . . . of a character so similar thereto as to lead to a reasonable inference that . . . such act if committed was wilful and not accidental."  The Privy Council held the evidence had been properly admitted.

In Rex v. Smith [1912] (the “Brides of the Bath” case), George Joseph Smith was accused of murdering his “wife” Bessie Mundy. George was married to another woman when he went through a ceremony to marry Bessie. After she changed her will to give him everything, she drowned in the bathtub. He said she must have had an epileptic fit.  Smith had married two other women, both made him their sole beneficiary under their wills, and both drowned in bathtubs while he, allegedly, was out buying groceries. The trial court admitted proof of the other women’s deaths, and warned the jury that they must not use that evidence to infer that the defendant was a man of bad character and infamous acts, but to help them decide whether the death of Miss Mundy was accidental or designed by the defendant.

Problem 3.  The crucial issue is consent. Smith's willingness to force himself on other women suggests that he might have acted the same way on this occasion. But this propensity reasoning is exactly what the common law and FRE 404 forbid. The evidence might be admissible under FRE 413, which carves a hole in FRE 404. Congress adopted this rule to make it easier to obtain convictions in rape cases. Since the evidence is admissible "for its bearing on any matter," it can be admitted for propensity purposes. FRE 414 and 415, which apply in child-molestation cases, are similar.

Problem presented in class. Analysis
D is charged with theft in connection with an electronic transfer of funds from all the bank accounts held by the First Security Bank of Omaha to a bank in the Bahamas. The government's theory is that D hacked into First Security and made the transfers with a few well chosen keystrokes. Prior to trial, it notifies D that it will introduce a previous conviction arising out of a prank that D committed when D was a student at MIT. The prank consisted of hacking into MIT's computer network and making all the output appear upside-down for 15 minutes. D objects under FRE 404. Analysis. Rule 404 does not bar the evidence. D's prank is relevant to prove that he has the technical knowledge to penetrate First Security's computer system. Offered for this purpose, this evidence is not mere propensity evidence. The logic is not "once a thief, always a thief."