Old 404(b) Evidence in Sexual Assault Cases

I’m preparing to teach a session during which I’ll cover the use of Rule 404(b) evidence in sexual assault cases. (As most readers of this blog know, Rule 404(b) evidence is evidence of bad acts by the defendant other than the charged offense; such evidence isn’t supposed to be used to show that the defendant is a bad person, but may properly be used to show lots of other things, like the defendant’s “motive . . . intent . . . plan . . . or absence of mistake.”) I did a bunch of research on a fairly common issue, so I thought I’d share it here.

Lots of cases say that Rule 404(b) evidence is more likely to be admissible if it is relatively recent. But how old is too old? If a defendant who is charged with a sexual assault committed a similar assault 15 years earlier, can evidence of the prior act be admitted to show a common scheme or plan? The cases don’t establish a bright line, as the table below shows.

Not Too Remote

Too Remote



State v. Frazier, 344 N.C. 611 (1996) (very similar conduct ranging from 7 to 27 years earlier) State v. Jones, 322 N.C. 585 (1988) (7 to 12 years earlier)
State v. Penland, 343 N.C. 634 (1996) (“distinct and bizarre” behavior 10 years earlier)
State v. Shamsid-Deen, 324 N.C. 437 (1989) (continuous series of acts going back over 20 years)



State v. Register, __ N.C. App. __, 698 S.E.2d 464 (2010) (very similar conduct 14, 21, and 27 years earlier; gap explained by lack of access to victims) State v. Webb, 197 N.C. App. 619 (2009) (21 and 31 years earlier)
State v. Bowman, 188 N.C. App. 635 (2008) (8 years earlier; admitted to show intent and lack of mistake; gap explained in part by defendant’s incarceration) State v. Delsanto, 172 N.C. App. 42 (2005) (23 years earlier)
State v. Bullock, 178 N.C. App. 460 (2006) (9 years earlier) State v. Gross, 104 N.C. App. 97 (1991) (7 years earlier; but error harmless)
State v. Jacob, 113 N.C. App. 605 (2004) (10 years earlier; interruption explained by lack of access to victims)
State v. Curry, 153 N.C. App. 260 (2002) (some acts 10 years earlier, with additional acts continuing up until charged offenses)
State v. Sneeden, 108 N.C. App. 506 (1993) (23 years earlier; admitted to show intent and lack of consent)
State v. Matheson, 110 N.C. App. 577 (1993) (10 years earlier)

I’m sure the table doesn’t list all the recent cases on this issue, but it’s a pretty good sample. Synthesizing the cases, it appears that old Rule 404(b) evidence is more likely to be admitted if:

  • It is admitted for one or more purposes other than to show a common scheme or plan
  • The evidence is very similar factually to the charged offense
  • The evidence is of a pattern of conduct, i.e., involves multiple instances rather than a single instance
  • Any gap in activity can be explained by the defendant’s lack of access to victims, whether by incarceration or otherwise, e.g., because he typically victimized young girls in his household, but for a period of time was living in a household where no young girls were present

I should emphasize again that all the cases cited above are sexual assault cases. Rule 404(b) evidence is admitted more liberally in such cases than in criminal cases generally, so neither the cases nor my analysis of them are necessarily applicable to Rule 404(b) controversies in other types of cases.

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