Rule 404(b): The Bare Fact of Conviction Rule

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Rule 404(b): The Bare Fact of Conviction Rule

Posted on April 17, 2013 by Jessica Smith

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 rule, the bare fact of a defendant’s conviction is not admissible under Rule 404(b). The North Carolina Supreme Court established the bare fact of conviction rule in State v. Wilkerson, 356 N.C. 418 (2002), where it reversed the decision below (State v. Wilkerson, 148 N.C. App. 310 (2002)) for the reasons stated in Judge Wynn’s dissent. See also State v. McCoy, 174 N.C. App. 105, 110-111 (2005) (reversing because of Wilkerson error); State v. Scott, 167 N.C. App. 783, 785-86 (2005) (same). In his Wilkerson dissent (subsequently adopted by the Supreme Court), Judge Wynn reasoned that 404(b) evidence is admissible only for certain purposes. Wilkerson, 148 N.C. App. at 319. The bare fact of conviction, he reasoned, “would rarely, if ever, be probative of any legitimate Rule 404(b) purpose.” Id. Rather, it is the facts and circumstances of the offense that have probative value. Id. Additionally, he concluded, even if the bare fact of conviction had any probative value for Rule 404(b) purposes that value is substantially outweighed by prejudice, requiring exclusion under Rule 403. Id.

The Wilkerson rule prohibiting the admissibility of the bare fact of conviction under Rule 404(b) is in contrast to admissibility under Rule 609, which allows for impeachment with evidence of a conviction. Wilkerson, 148 N.C. App. at 319. For purposes of Rule 609 impeachment, the only admissible evidence is the record of conviction (bare fact of conviction). Id. at 320-23. Thus, when the defendant testifies at trial, both the facts and circumstances of the conviction may be admissible (under Rule 404(b)) and the fact of conviction may be admissible (under Rule 609).

As is often the case, however, where there is a general rule, there are exceptions. With regard to the bare fact of conviction rule, there are four:

1. Categorical Exception in Second-Degree Murder Cases. In his dissent in Wilkerson, Judge Wynn noted that “our courts have recognized a categorical exception” that allows admission of prior traffic-related convictions to prove malice in second-degree murder cases. Wilkerson, 148 N.C. App. at 328; see also State v. Rollins, __ N.C. App. __, 725 S.E.2d 456, 462 (2012) (citations were relevant to establish malice for purposes of second-degree murder).

2. Narrow Exception for Sexual Assault Cases. In his dissent in Wilkerson, Judge Wynn noted that case law supported a narrow exception to the bare fact of conviction rule allowing evidence of a prior sexual assault conviction to be admitted under Rule 404(b) to show the defendant’s intent to rape the victim in a case where the victim escaped before the offense was completed. Wilkerson, 148 N.C. App. at 325 & 328. Later case law confirms the limited applicability of this exception. State v. Bowman, 188 N.C. App. 635, 643-44 (2008) (error to admit bare fact of conviction in a sex case).

3. Narrow Exception for Motive or Intent. In his dissent in Wilkerson, Judge Wynn noted:

Arguably, under very narrow circumstances, bare evidence of a prior conviction could be probative of an enumerated purpose under 404(b); for instance, the bare fact that defendant was convicted of an offense could be probative of a defendant’s motive or intent in committing a subsequent crime of assaulting a witness that helped procure the earlier conviction. Even then, the trial court would be required to assess the prejudice of allowing the bare evidence of the prior conviction under Rule 403.

Wilkerson, 148 N.C. App. at 327 n. 2.

4. Exception for Victim’s Prior Convictions. The bare fact of conviction rule does not apply to evidence of the victim’s convictions. State v. Jacobs, 363 N.C. 815, 824-25 (2010) (Wilkerson 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).

So there you have it: the general rule and the four exceptions. Questions? Fire away!

Category: Evidence, Uncategorized | Tags: 404(b), bare fact of conviction, wilkerson, wynn

The Sexual Assault Exception to the “Bare Fact” Rule

Posted on February 17, 2011 by Jeff Welty

Yesterday, I taught a class on the use of Rule 404(b) evidence in sexual assault cases. During the class, we discussed the general rule against admitting the bare fact of a defendant’s prior conviction. As Jessie discussed here, the basic idea is that even when Rule 404(b) evidence is admissible, if the bad act at issue resulted in a criminal conviction, the conviction itself is inadmissible. The rule comes from State v. Wilkerson, 356 N.C. 418 (2002), a case in which the state supreme court adopted, per curiam, Judge Wynn’s dissent in the court of appeals. Judge Wynn wrote:

[T]he bare fact of a defendant’s prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose; instead, it is the facts and circumstances underlying such a conviction which hold probative value.

Judge Wynn reasoned that when the fact of a conviction is admitted, it adds no probative value but carries a prejudicial effect, meaning that admitting the bare fact of conviction violates the balancing test of Rule 403. Further, he argued, whether a defendant’s prior convictions are admissible is governed by Rule 609, which allows them to be admitted for impeachment purposes under certain circumstances. Allowing them to be admitted under Rule 404(b), in his view, would eviscerate Rule 609.

However, in the concluding paragraphs of his opinion, Judge Wynn suggested several exceptions to the general rule. He said that the bare fact of a defendant’s prior conviction should not be admitted “except in cases where our courts have recognized a categorical exception to the general rule,” such as “admitting prior sexual offenses in select sexual offense cases, and admitting prior traffic-related convictions to prove malice in second-degree murder cases.” (Emphasis supplied.)

During my class yesterday, there were some questions about the scope of the exception for “select sexual offense cases.” I wasn’t adequately prepared for the questions. This post is intended to provide a bit more detail than I was able to give yesterday.

The exception noted in Wilkerson appears to be based on State v. Hall, 85 N.C. App. 447 (1987), which is cited in the Wilkerson opinion. In Hall, the defendant was charged with attempted rape and other crimes. The state sought to introduce the defendant’s prior conviction for assault with intent to rape, in order to prove that the defendant’s intent in assaulting his current victim was to rape her. The evidence was admitted, the defendant was convicted, and the court of appeals affirmed, stating that “[w]hether a defendant’s previous conviction for a sexual offense is pertinent in his prosecution for an independent sexual crime depends on the facts in each case, and, among other things, the availability of other forms of proof.” It further explained that “evidence of the prior conviction was crucial to the State’s case due to the unavailability of other kinds of evidence of defendant’s intent.”

The distinction between the bare fact of a conviction and the conduct underlying the conviction isn’t discussed in Hall, so I don’t think that Hall is extremely strong support for the idea that the bare fact of conviction should be admissible in sexual assault cases. And there aren’t enough cases on point since Wilkerson – which was not itself a sexual assault case – to clarify the matter. The two that I found are State v. Bowman, 188 N.C. App. 635 (2005) (holding that it was error, but not reversible error, to admit the fact of the defendant’s prior convictions for sexual battery during a prosecution for aiding and abetting statutory rape and other crimes; determining the admissibility of prior convictions requires a “case-by-case inquiry,” but here, “there was substantial testimony regarding the facts underlying defendant’s prior convictions,” rendering the convictions themselves superfluous), and State v. Arnold, 2004 WL 2940866 (N.C. Ct. App. Dec. 21, 2004) (unpublished) (where the defendant was charged with failure to register as a sex offender, it was not error to admit his prior conviction for failure to register, in part because “it was the arresting officer who testified regarding [the prior] conviction . . . and [the officer] provided the court with the facts and circumstances underlying” the conviction in addition to the conviction itself).

Notice that in Bowman, the fact that the state introduced the details of the conduct underlying the defendant’s prior convictions counted against the admissibility of the convictions themselves, while in Arnold, that same circumstance counted in favor of the admissibility of the convictions. Given that Hall is not a very strong precedent and that the few post-Wilkerson cases aren’t entirely consistent, my advice to prosecutors is to not to introduce the bare fact of a defendant’s prior convictions, even in sexual assault cases, if at all possible.

Category: Evidence, Uncategorized | Tags: 404(b), bare fact of conviction, sex offenses

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

Posted on April 29, 2010 by Jessica Smith

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.

Category: Evidence, Uncategorized | Tags: bare fact of conviction, relevancy, rule 404(b)

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