Oregon Prior Bad Acts: Analysis of “Prior Bad Act” Evidence for Criminal Defense Lawyers (2 of 10)
State v. Williams controls: There is a new other act analysis paradigm, which is now more favorable to Oregon criminal defendants.
State v. Williams, 357 Or 1 (2015), holds that Oregon Evidence Code 404(3) no longer applies to evidence offered of a defendant’s prior bad acts. Instead, OEC 404(4) now controls. Williams can be broken down into a three-part test for the admissibility of prior act evidence: (1) establish how the prior act is relevant under OEC 401; (2) establish whether the evidence is being offered for a propensity or non-propensity purpose and, if for non-propensity, establish what exactly it is being offered for; and (3) determine if the evidence is admissible after an OEC 403 balancing test. Williams confirms that the framework for such an analysis begins with OEC 404(4), which provides:
In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
– [OEC 406 through 412] and, to the extent required by the United States Constitution or the Oregon Constitution, [OEC 403];
– The rules of evidence relating to privilege and hearsay;
– The Oregon Constitution; and
– The United States Constitution.
Under Williams, the admission of other acts evidence violates due process unless the evidence is subjected to the balancing test provided by OEC 403. Williams at 18-19. OEC 404(4) also provides that propensity evidence is subject to exclusion under the other authorities listed in OEC 404(4)(a)-(d). As the Williams court reasoned:
When a party objects, under OEC 403, to “other acts” evidence offered under OEC 404(4), a trial court must engage in the balancing anticipated by OEC 403. At one end of the spectrum, “other acts” evidence that is offered for nonpropensity purposes – i.e., to prove motive, intent, identity, or lack of mistake or accident – generally will be admissible as long as the particular facts of the case do not demonstrate a risk of unfair prejudice that outweighs the probative value of the evidence. At the other end of the spectrum, as the State recognizes, when “other acts” evidence goes only to character and there are no permissible inferences the jury may draw from it, it is more likely that the evidence will be excluded. Such evidence generally will have little or no cognizable probative value, and the risk that the jury may conclude improperly that the defendant had acted in accordance with past acts on the occasion of the charged crime will be substantial.
State v. Williams, 357 Or at 19-20 (internal citations omitted). Therefore, the Due Process Clause requires the application of the OEC 403 balancing test and excluding other act evidence that fails the test.
Williams has been cited by other Oregon cases since it was decided and it is referenced several times in the analysis set forth herein. An understanding of the factual background of Williams is paramount in most cases because the Williams court’s opinion was built upon the unique proof issues in that child sex abuse case. The Williams defendant was alleged to have touched a 5-year-old; the State offered two pairs of underwear found in the defendant’s home to prove that the defendant touched the child victim for a sexual purpose (rather than touching her accidently without a sexual purpose). In effect, the State used the existence and location of the underwear to show that the sexual abuse defendant had a propensity for being sexually interested in children. The elements of that sex crime required the State to prove that the defendant had a sexual purpose in touching the child. There are limited ways to prove sexual purpose to an Oregon jury. Propensity evidence (the underwear) was almost the only way to prove sexual purpose in this situation. These details should be kept close at hand as the acts elected by the State are analyzed by an Oregon criminal defense lawyers.
OEC 403 balancing test must be conducted due to Williams.
Propensity evidence is a major concern for injustice.
Ultimately, the Oregon Supreme holding in Williams that the OEC 403 balancing must take place is explicitly limited to sex cases, but based on the court’s reasoning, the balancing should also apply to an Oregon homicide/murder trial, as well as all Oregon other criminal defense cases. In reaching her opinion, Justice Walters takes the reader on an amazing journey through the history of the ban on propensity evidence through the common law.
She reasons that OEC 404’s bar on propensity evidence is a specific application of OEC 403’s balancing test for three main reasons:
(1) Risk of conviction for past misdeeds: “The theory is that the risk that the jury will convict for the crimes other than those charged, or because the accused deserves punishment for his past misdeeds, outweighs the probative value of the inference that ‘he’s done it before, he’s done or will do it again.’” State v. Williams, 357 Or at 6.
(2) Unfair to prepare for unrelated accusations: She also postulates that “[a]nother reason for the propensity rule in criminal cases is that it is viewed as unfair to require an accused to be prepared not only to defend against the immediate charge, but also to defend or explain away unrelated acts from the past.” Id.
(3) Trials within a trial confusing: Finally, the court concluded that “courts are concerned with the confusion of issues and undue consumption of time through what may be, in effect, a trial within a trial to ascertain the relationship between the purported other crime and the defendant.” Id.
OEC 403 Balancing is Constitutionally Required (Federally).
Williams goes into significant detail in tracing the federal analysis of the constitutional requirement of an FRE 403 balancing. Since there is no U.S. Supreme Court precedent, the court concluded that “we must determine as best we can, how that [Supreme] Court would rule if presented with the question before us.” Id. at 18. Then it concluded that an OEC 403 balancing was constitutionally required in the prosecution of child sexual abuse cases. Id.
Consequently, this begs the question of whether or not the balancing test is constitutionally required in Oregon murder and Oregon homicide cases as well. Since Williams, there have been seven cases applying part or all of the analysis to different charges, including two assault cases, two more child sex abuse cases, two theft-like cases, and one solicitation of aggravated murder. There has been no application of Williams to a homicide, much less a murder.
Nonetheless, even outside of the applicability of these cases (which are further analyzed below), there appears to be a constitutional due process requirement to apply the Williams balancing to homicide/murder in addition to child sex abuse cases. First, the historical practice requires this evidentiary rule (OEC 403) to be embodied in the constitution. The Williams court cited U.S. v. Lemay, 260 F3d 1018 (2001), to stand for the premise that the Ninth Circuit considered the “‘historical’ practice” prohibiting the use of ‘other acts’ to prove the charged crime and concluded that ‘the general ban on propensity evidence has the requisite historical pedigree to qualify for constitutional status.’” State v. Williams, 357 Or at 12.
The Williams court struggled with the historical application of OEC 403 balancing in a child sex case, but in dicta alluded that it is an easy answer if it were something other than sexual abuse. The court reasoned that “[i]f this were a case in which defendant had been charged with crimes other than sexual abuse, we might be persuaded that due process incorporates that historical practice and therefore not only requires the application of OEC 403, but also precludes the admission of ‘other acts’ evidence to prove propensity.” Id. at 17. Consequently, the court goes farther in this dicta to not only conclude that OEC 403 is always required, but that the constitution prohibits propensity evidence for any purpose (other than child sex cases). In summary, there are more constitutional protections in non-child sex cases (i.e., murder and other criminal defense cases).
Specifically, the Fourteenth Amendment provides that “No state shall…deprive any person of life, liberty, or property, without the due process of law.” The United States Supreme Court has held that the amendment “imposes minimum standards of fairness on the States, and requires state criminal trials to provide defendants with protections implicit in the concept of ordered liberty.” Danforth v. Minnesota, 552 US 264, 270 (2008) (quoting Palko v. Connecticut, 302 US 319, 325 (1937)). The Fourteenth Amendment “is the source of the [United States Supreme] Court’s power to decide whether a defendant in a state proceeding received a fair trial—i.e., whether his deprivation of liberty was ‘without due process of law.’” Danforth at 271. Consequently, the Due Process Clause requires a trial court to ultimately exclude evidence that creates an unreasonable threat to the fairness of a trial because of propensity concerns, even where that evidence is admissible under state-court evidentiary rules that permit evidence of prior bad acts. Spencer v. Texas, 385 US 554, 561 (1967).
OEC 403 Balancing Test is Required Under the Oregon Constitution.
An OEC 403 balancing test is required under the Oregon Constitution, although there is no Oregon case specifically so stating. Williams did not make this as part of its holding because it was not asked to (the State constitutional argument was not preserved for appeal). In footnote 15, Williams points out that at least “two state supreme courts have held that the admission of propensity evidence would violate their states’ constitutions.” State v. Williams, 357 Or at 24. This footnote also summarized Iowa’s reliance on its due process provision (which Oregon does not have), but also pointed out that Iowa’s analysis also hinged on concerns about the presumption of innocence. Id. The footnote also pointed to how Missouri, on the other hand, relied on its provisions that “‘no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information’ and that ‘in criminal prosecutions the accused shall have the right…to demand the nature and cause of the accusation.’” Id. It also notes that Missouri court surmised that “‘evidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant’s propensity to commit the crime which he is presently charged.’” Id.
The applicable Oregon constitutional provisions that would similarly require an OEC 403 balancing and also prevent admission of propensity evidence can be found in Article 1, section 11. First, “the accused shall have the right to a public trial by an impartial jury.” (Emphasis added). Propensity evidence, unfairly prejudicial and/or confusing evidence, puts the trier of fact at great risk of losing its impartiality, thus constitutionally necessitating at least a balancing test and likely a full prohibition of propensity evidence.
Second, Article 1, section 11, also guarantees the right “to demand the nature and cause of the accusation against him, and to have a copy thereof.” Similar to Missouri’s provision, this provision suggests a general prohibition on prior crimes for propensity purposes, as they are not in the charging instrument. Consequently, the Court should find a state constitutional requirement to apply the balancing test and to prevent the admission of propensity evidence.
NEXT PAGE: Oregon Prior Bad Acts: Post-Williams Paradigm Shift (3 of 10)
Arnold Law represents clients along the Oregon Coast and throughout Western Oregon, including in Portland, Eugene, Springfield, Salem, Corvallis, Cottage Grove, Albany, Newport, Oregon City, Beaverton, Clackamas, Wilsonville, Tigard, Hillsboro, Lake Oswego, Coburg, Creswell, Florence, Junction City, Lowell, Veneta, Oakridge, Roseburg, Brownsville, Halsey, Harrisburg Klamath Falls, Medford, Ashland, Grants Pass, Glendale, and Bend, and in the following counties: Lane County, Multnomah County, Washington County, Clackamas County, Linn County, Douglas County, Marion County, Coos County, Lincoln County, Benton County, Deschutes County, Josephine County, Klamath County, and Jackson County.