I have been asked several times whether the state may admit, under N.C. R. Evid. 404(b), evidence of noncriminal conduct. The answer is yes, assuming of course that the evidence is offered for a proper purpose under the Rule and meets the other requirements for admissibility.
Examples. This issue can arise in many kinds of cases. When a defendant is charged with selling illegal steroids, the state may wish to admit evidence of prior sales of legal muscle-builders to show a common scheme or plan. Or, when a defendant is charged with possession of child pornography, the state may seek to introduce evidence of the defendant’s possession of sexually suggestive, but not pornographic, images of children in order to show the defendant’s motives.
Analysis. By its terms, Rule 404(b) applies to “acts” as well as to “crimes” and “wrongs.” Therefore, as the court explained in State v. Wilson, 108 N.C. App. 117 (N.C. App. 1992), Rule 404(b) “evidence is not limited to evidence of other criminal or unlawful acts on the part of the defendant, but also includes any extrinsic conduct or misconduct by the defendant which is relevant to an issue in the case other than to show that the defendant has the propensity for the type of conduct with which he is charged.” So the fact that the conduct at issue was lawful does not, in itself, provide a basis for objecting to its admissibility under Rule 404(b).
Other jurisdictions. Out of state cases uniformly agree with the conclusion reached in Wilson. United States v. Scott, 677 F.3d 72 (2d Cir. 2012) (noting the every federal circuit court “to consider the issue has concluded that Rule 404(b) extends to non-criminal acts or wrongs,” collecting cases, and joining the consensus); United States v. Long, 328 F.3d 655 (D.C. Cir. 2003) (defendant engaged in sexual activity with, and took explicit pictures of, underage teen boys; he was charged with related crimes; the government’s evidence included testimony from overage teen boys with whom the defendant had engaged in similar conduct; the testimony was properly admitted under Rule 404(b) to show, inter alia, intent, pattern, and modus operandi); Meece v. Commonwealth, 348 S.W.3d 627(Ky. 2011) (observing that Rule 404(b) evidence “is not limited to other acts that are criminal or unlawful” and citing precedent).
Commentators. Commentators also concur. See, e.g., 2 Weinstein’s Federal Evidence § 404.20[2][a] (2d ed. 2003) (“Rule 404(b)’s terminology ‘other crimes, wrongs, or acts’ includes conduct that is neither criminal nor unlawful if it is relevant to a consequential fact”); State v. Stout, 237 P.3d 37 (Mont. 2010) (collecting the uniform views of commentators, including Imwinkelried, Mueller & Kirkpatrick, Wright & Graham, and Weinstein).
What other jurisdictions have adopted the “rule of inclusion”language Burley Mitchell included as dicta in his concurrence in State v. Shamsid-Deen? I understand that State v. Coffey elevated his advocacy in Shamsid-Deen for the “rule of inclusion” interpretation to “gospel truth” for NC lawyers. Nonetheless, I find it difficult to believe that other jurisdictions have followed this interpretation. Our Rule 404(b) is worded as a a rule of exclusion. “Evidence of other crimes, wrongs, or acts is NOT admissible to…” I know our Supreme Ct. is big time ‘”law and order,” but has any other appellate court stood their version of the rule on its head like our Supreme Court has? I cannot believe many other jurisdictions have allowed their versions of 404(b) to be utterly swallowed up by such results oriented reasoning as exhibited in Shamsid-Deen and Coffey.
The federal courts, including the Fourth Circuit, often use similar language. See, e.g., United States v. Byers, 649 F.3d 197 (4th Cir. 2011) (“Rule 404(b) is a rule of inclusion, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition.”). I don’t know about other states, but I suspect they’re similar. Of course, the fact that many courts use “rule of inclusion” language doesn’t mean that they all agree on exactly HOW inclusive Rule 404(b) is.