404(b) Evidence and the Bare Fact of a Prior Conviction

As readers of this blog know, Rule 404(b) provides that although evidence of other crimes, wrongs, or acts is not admissible to prove propensity, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. N.C. R. Evid. 404(b). Even when offered for a proper purpose Rule 404(b) evidence must satisfy tests for similarity and timeliness. And of course, Rule 404(b) evidence is subject to Rule 403 balancing. As our courts have said, the ultimate test for admissibility of such evidence is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under Rule 403. State v. Boyd, 321 N.C. 574 (1988). While many cases hold that 404(b) prior bad acts evidence passes muster under Rule 403 balancing, that is not universally true. Perhaps the most significant cases in this regard are those holding that 404(b) evidence of the bare fact of a prior conviction does not survive the Rule 403 balancing test.

The seminal case on point is State v. Wilkerson, 356 N.C. 418 (2002), in which the court, per curiam, adopted Judge Wynn’s dissenting opinion below. Judge Wynn reasoned that “the bare fact of a defendant’s prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose.” State v. Wilkerson, 148 N.C. App. 310 (2002) (Wynn, J., dissenting). Contrasting Rule 404(b) to Rule 609, which allows admission of the bare fact of conviction to impeach a defendant who has testified, Wynn explained that for 404(b) purposes “it is the facts and circumstances underlying such a conviction which hold probative value.” Wilkerson, 148 N.C. App. 310; see also State v. Mewborn, 178 N.C. App. 281 (2006) (distinguishing Wilkerson and holding that the bare fact of conviction was admissible under Rule 609 to impeach the defendant, who had testified). Wynn concluded: “[E]ven if a conviction, in and of itself, held a scintilla of probative value for Rule 404(b) purposes, inherent prejudicial effect of such a conviction would substantially outweigh its probativity, mandating its exclusion under Rule 403.” Wilkerson, 148 N.C. App. 310; see also State v. Badgett, 361 N.C. 234 (2007) (following Wilkerson); State v. McCoy, 174 N.C. App. 105 (2005) (same); State v. Scott, 167 N.C. App. 783 (2005) (same); State v. Hairston, 156 N.C. App. 202 (2003) (same). The rule applies even when the bare fact of conviction is offered after evidence has been presented establishing the facts and circumstances of the prior conviction. McCoy, 174 N.C. App. 105. However, Judge Wynn excepted from the rule “cases where our courts have recognized a categorical exception to the general rule (e.g., admitting prior sexual offenses in select sex offense cases, and admitting prior traffic-related convictions to prove malice in second-degree murder cases).” Wilkerson, 148 N.C. App. 310. Later cases have held that an admission of guilt in a transcript of plea is not a bare fact of conviction, State v. Brockett, 185 N.C. App. 18 (2007), and that the Wilkerson rule applies to prior bad acts of the victim. State v. Jacobs, __ N.C. App. __, 673 S.E.2d 724 (2009).

Thus defense lawyers should be alert to attempts by the State to introduce the bare fact of conviction under Rule 404(b). Should the State wish to introduce such evidence, it must fall within a “categorical exception” to the Wilkerson rule or be used for impeachment of a testifying witness under Rule 609.

8 thoughts on “404(b) Evidence and the Bare Fact of a Prior Conviction”

  1. So why is it just the Defense Lawyers who should be on guard for this type of 404(b) evidence? In one of my last homicide cases, I received hundreds of pages of the murder victim’s DOC records from the defense within a month of the case being charged. 404(b) goes both ways.

  2. Out of curiosity, why do you complain? With all the resourses given to the state; from the police officers who investigate the crime, to your own independent investigator, to your victim’s rights coordinator, to your staff, to the DOC website which provides easy access to the information you mention. Why would you not already know/have the victim’s DOC records?

    • Who said I was complaining? I was just pointing out how the defense uses character evidence against the victim just as much as the State uses it against the defendant. And usually, the trial judge lets it in despite clear-cut appellate rulings to the contrary.

      Also, I have all of those resources you listed solely because I have the burden of proof. The defense has no burden whatsoever.

  3. why is it that all the people who work for UNC school of government bend over backwards to help and assist the State. i thought you guys are supposed to be legal scholars and be neutral. Please teaching at DA school writing these legal views, that judges use with out even thinking–you guys need to be more scholars and less just finding ways for the State to win. The burden is on the State, yet your school always places burden on defendant–just be fair—what ever??? No wonder so many people dont trust our government. Next time any of you great legal minds writes and post on this web site—thank about what america was founded on think about the burden constitution plays on the State and remember your ruling carry alot of weight to us people fighting in trenches–be fair

    • You can’t be serious? Jeff Welty et. al. do a very good job of keeping this site very neutral. In fact, the only posts that even come close to addressing only one side are the ones from the defender educators. (I’m thinking specifically of the post on why most jurisdictions do not have preliminary hearings.)

      Besides, who in their right mind would *ever* accuse UNC of being state-friendly?

    • I also find it ironic that you make this comment under a story whose closing paragraph starts with, “Thus defense lawyers should be alert to attempts by the State to introduce the bare fact of conviction under Rule 404(b).”

  4. My post cites the Court of Appeals decision in Jacobs. For the current law, see the N.C. Supreme Court’s opinion:

    State v. Jacobs, 363 N.C. 815 (2010). In a murder and attempted armed robbery trial, the trial court erred when it excluded the defendant’s proposed testimony that he knew of certain violent acts by the victim and that the victim had spent time in prison. This evidence was relevant to the defendant’s claim of self-defense to the murder charge and to his contention that he did not form the requisite intent for attempted armed robbery because “there is a greater disincentive to rob someone who has been to prison or committed violent acts.” The evidence was admissible under Rule 404(b) because it related to the defendant’s state of mind. The court also held that certified copies of the victim’s convictions were admissible under Rule 404(b) because they served the proper purpose of corroborating the defendant’s testimony that the victim was a violent person who had been incarcerated. State v. Wilkerson, 148 N.C. App. 310, rev’d per curiam, 356 N.C. 418 (2002) (bare fact of the defendant’s conviction, even if offered for a proper Rule 404(b) purpose, must be excluded under Rule 403), did not require exclusion of the certified copies of the victim’s convictions. Unlike evidence of the defendant’s conviction, evidence of certified copies of the victim’s convictions does not encourage the jury to acquit or convict on an improper basis.


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