My ten-year-old daughter asked me a few weeks ago what O.J. Simpson had done. Like the rest of America, she heard news of his parole hearing. What she couldn’t figure out is why people were so interested in when he would be released from jail. I told her about the hotel room and the sports memorabilia. And then I told her about the murders of Nicole Brown Simpson and Ron Goldman. (Don’t judge me: She has older brothers and she has watched so many episodes of Criminal Minds that the damage is already done.) I told her that a great many people thought O.J. had gotten away with murder; that’s why some thought he should stay in jail. With O.J., as with nearly everyone tried in the court of public opinion, allegations of other bad behavior shape the public’s perception of the person’s current predicament.
404(b)
Bill Cosby and the Lack of Rule 404(b) Evidence
Over the weekend, the judge presiding over Bill Cosby’s sexual assault trial declared a mistrial after the jury was unable to reach a unanimous verdict. I hadn’t followed the case very closely and my knee-jerk reaction was, “wait, fifty women have accused this guy of sexual assault and he didn’t get convicted?” As I thought more about it, I began to wonder how many accusers — other than Andrea Constand, the alleged victim in the case — were allowed to testify against Cosby. It turns out that it was only one.
Rule 404 and Evidence of Prior Incarceration
In a recent decision, the Court of Appeals granted a new trial on the ground that improper and prejudicial character evidence regarding a prior incarceration of the defendant was admitted at trial. The case presents a reminder about the distinction between North Carolina Rules of Evidence 404(a) and 404(b) and sheds light on the admissibility of evidence of a defendant’s incarceration.
Facts. In State v. Rios, ___ N.C. App. ___ (Dec. 20, 2016), law enforcement obtained a warrant to search the residence of the defendant, where he lived with the homeowner and another roommate. The search revealed nearly sixty pounds of marijuana and a host of other evidence of drug distribution activity. The police found about seven pounds of marijuana in the defendant’s bedroom, most of which was in a large box. Fifty more pounds were found in the garage. A latent fingerprint found on drug-packaging material in the homeowner’s room was matched to the defendant.
Going “Beyond the Bounds” of Rule 404(b) in a Case Involving the Death of a Child
About a year ago, I wrote about State v. Hembree, 368 N.C. 2 (2015), a case in which the state supreme court reversed a murder conviction based on the State’s excessive use of Rule 404(b) evidence. This month, a divided court of appeals decided a case in the same vein. The case is State v. Reed.
Rule 404(b): The Requirement of Temporal Proximity
As I noted in my last post on Rule 404(b) evidence, even when the evidence is relevant to an issue other than propensity or disposition, admissibility is “constrained by the requirements of similarity and temporal proximity.” State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 159 (2012) (quoting State v. Al-Bayyinah, 356 N.C. 150, 154 … Read more
Rule 404(b): The Requirement of Similarity
Even when Rule 404(b) evidence is relevant to an issue other than propensity or disposition, admissibility is “constrained by the requirements of similarity and temporal proximity.” State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 159 (2012) (quoting State v. Al-Bayyinah, 356 N.C. 150, 154 (2002)). In this, my fourth post on Rule 404(b) evidence, … Read more
Rule 404(b): Proper Purpose Other than Propensity
Rule 404(b) is a rule of inclusion subject to one exception: the evidence must be excluded if its only probative value is to show that the defendant had the propensity or disposition to commit the charged offense. Evidence of other crimes, wrongs, or acts is admissible, however, for other purposes. In this post, my third … Read more
Rule 404(b): Did He Really Do It?
In this second post on Rule 404(b) evidence [editor’s note: the first post in this occasional series is here], I’ll address a point that sometimes gets overlooked in the admissibility analysis: In order for Rule 404(b) evidence to be relevant, there must be sufficient evidence that the defendant committed the other act in question. State … Read more
Rule 404(b): The Bare Fact of Conviction Rule
Evidence Rule 404(b) allows for the admission of evidence of other crimes, wrongs, or acts for purposes other than propensity, such as proving motive, opportunity, intent, preparation or plan. In a series of posts, I’ll explore common issues that arise regarding Rule 404(b). First up is the bare fact of conviction rule. As a general … Read more
Rule 404(b) and Noncriminal Conduct
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 … Read more