Oregon Evidence Code 403 Balancing: Prior Bad Acts & Due Process (4 of 10) - Arnold Law in Eugene, Oregon – Powerful Advocacy. Proven Results.

Oregon Evidence Code 403 Balancing: Prior Bad Acts & Due Process (4 of 10)

OEC 403 Balancing: Do the prior bad acts have minimal relevance due to the actus reus of the crime and are unfairly prejudicial, cumulative, etc.? 

It is often a prudent analytical framework to begin analysis with the OEC 403 balancing test assuming, for the sake of argument, that all of the bad acts alleged against a criminal defendant are relevant. The reason to start the analysis here is two-fold: (1) it is the simplest analysis; and (2) the decision by the trial court is virtually unassailable on appeal, assuming a good record by the trial judge is made (the standard of error is abuse of discretion for OEC 403 balancing and error of law for relevancy). Consequently, it is very difficult to overturn a trial judge’s decision for exclusion or inclusion under OEC 403’s balancing but relatively common for an error in applying the law of relevance.

OEC 403 Flow Chart

The State first needs to prove that the actus reus occurred: that in a murder case the defendant pulled the trigger, in an assault case the defendant threw the punch, etc.  The trial court should make this legal finding and then apply the balancing test.  See Leistiko.

The other act evidence elected by the State is often minimally relevant. If the jury finds that the act of the crime happened, then intent and motive are often inextricably linked to the act.

An example of intent proven by the act itself can be found in a shooting case.  If someone shoots someone in the back of the head with a 12-gauge slug at close range while the victim is tied up and passed out, then it is pretty clear that the shooter intended that person to be dead.  Admitting evidence that could let a jury conclude that the shooter is the type of person that is more likely to kill someone is a huge risk that does not need to be taken because the need for that evidence is very, very low. However, if the shooter claimed that he was wrestling the gun away or that it “just went off” into the back of the head of a bound victim, then intent is in play.

Applying the Sewell Oregon Evidence Code 403 balancing analysis.

“Analyze the quantum of probative value of the evidence and consider the weight of strength of the evidence.”

Often, all of the alleged prior acts are minimally relevant. Some require an elaborate chain of inferences instead of one single intermediate inference.  A long inference chain makes the other acts evidence minimally relevant due to the speculative nature of the inference chain. The longer the chain, the more opportunities a jury will have to leave the permissible path of deliberations and make a propensity-based determination.

None of the prior acts may be used by the jury to make the following inference: due to the prior act, the defendant is more likely to have committed the alleged act.

“Determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question [of] whether the defendant committed the charged crime.”   

The other act evidence can be a distracting side show to the real issue in a criminal defense case: was the criminal act committed by the defendant?  The jury is poised to misuse this other act/state of mind evidence to conclude that a defendant is a bad person who must have committed the crime.  Most Oregon criminal defense cases are different than the countless child sex cases that admit prior acts to prove a sexual interest in a child, such as in Williams. Yes, in a sex case, there is a large risk that a jury would misuse the horribly twisted evidence of prior child sex crimes. However, given how deviant and unnatural pedophilia is, the State must prove what was going on in someone’s mind to cause him to deviate from human nature and use sex in a way that cannot even cause reproduction due to the age of the child victim.  The unique and specific elements of child sex crime charges make the bad acts highly relevant and highly prejudicial but not unfairly prejudicial in those specific cases.

In most other cases, the other acts evidence is minimally relevant and highly prejudicial. Consequently, the evidence is unfairly prejudicial. It will be very confusing to the jury to have a laundry list of bad acts that they must sort through and determine if they happened only after determining if the charged act occurred. There is no jury instruction on the planet that could help a jury dissociate their minds to such an extent to analyze the evidence properly without injecting anger and other improper emotions into the process.

A trial judge can make a prejudice finding and it is generally not an abuse of discretion to do so.  He might also be able to find the opposite and not be an abuse of discretion.  Either way, presuming the record is sufficient, this weighty decision rests clearly with the trial court and not the court of appeals on this issue.

“Balance the prosecution’s need for the evidence against the countervailing prejudicial danger of unfair prejudice.”

The State of Oregon prosecutor typically claims it needs the propensity evidence because it is “absolutely necessary” to prove a defendant’s mental state because of the difficulty in establishing his mental state.  This is an entirely conclusory statement and the State usually does not offer any analysis as to why it is difficult to prove that someone who committed the alleged act had the requisite mental state while committing the alleged act.

The State of Oregon can be candid in the wake of State v. Williams, however, by claiming that a defendant’s violent conduct is relevant to show his propensity.  This is why the danger of unfair prejudice is so high.  Why does the State need evidence to prove intent if the State can prove the alleged criminal act?  What about the alleged act does not inherently prove intent, for instance? And why is motive helpful?  Motive is not an element.  Why does the State need to prove motive if the State can prove the act?  Why? Because the State often cannot prove the act itself and thus the State seeks to use the evidence improperly.  If the State cannot even get through its own analysis without arguing propensity evidence imagine what a jury would do with this evidence.

“Admit all the proponent’s evidence or admit only part of the evidence.”

An Oregon criminal defense attorney can typically concede that if fewer bad acts are admitted, it is less likely that a jury will be confused. However, the other act evidence will always be cumulative and nothing can prevent that.  The other acts evidence will always have a high risk of being misused, although the risk is reduced with fewer bad acts.

The following is a flow chart to assist the trial court in analyzing the factors in Sewell and apply the possible reasons that evidence may be excluded under OEC 403. A criminal defense lawyer should contend that each offered bad act is inadmissible under OEC 403 for each reason set forth in the flow chart (unfairly prejudicial, too time consuming/distracting, too confusing to jury, danger of misleading the jury, inflammatory effect on the jury, needlessly cumulative, etc.).

OEC 403 Flow Chart

NEXT PAGE: Oregon Evidence Code 404: Character Evidence vs. Relevance (5 of 10)

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