 Evidence for the Trial Judge Other Crimes, Wrongs, or Acts Applying Federal Rule of Evidence 404b Part 1 Welcome once again to Evidence for the Trial Judge, a federal judicial center program for the United States District and Magistrate Judges. I'm Stephen Salzburg, Howery Chair of Trial Advocacy at the George Washington University Law School. In this two-part program, we'll explore some of the more troublesome legal and practical issues that arise in the application of Federal Rule of Evidence 404b. With me to discuss these issues in the context of three hypothetical cases. Two criminal and one civil are United States District Judges Vicki Miles Legrange of the Western District of Oklahoma and Milton Shader of the Northern District of Illinois and Rena Raji of the Eastern District of New York. Welcome to you all. In today's program, we'll discuss whether certain other crimes evidence should be admitted in a hypothetical criminal case, which you have in your written materials. In the second part of the program, which airs later this month, we'll discuss 404b issues in the context of both criminal and civil cases. Let's begin with a more general question. Judge Miles Legrange, let me start with you. 404b criminal case, governments required to provide general notice that it's going to offer 404b evidence. What do you do to get the 404b issue into a position where you can rule? At the pretrial conference where notice of intent to offer 404b material has been made, that's the first time that I require the government to cite the specific reasons for me, for the court, as well as for the defense as to why this evidence should come in, specifically identify the facts for which this proffer is being made. I would add, however, oftentimes that has already been done as between counsel in the western district of Oklahoma. The U.S. attorney has an open file policy. Judge Hader, assuming you do something like this, what do you require of the government in terms of a 404b proffer? We require something more than that. We also have, fortunately, an open file policy that the U.S. attorney's office practices. I know that 404b literally just requires notice of what's called, I think, the general nature of any evidence that they intend to put in. In order to facilitate pretrial ruling and indeed to inform defense counsel, as well as the government and the court in planning for a trial, in practice that if I can shift gears a little to the 801d2e situation, the co-conspirator statement, we require upfront Santiago proffers called after a seventh circuit decision, as you might guess, of the same name, although we've thought about changing that to Burjeli. But that means that we require shifting to 404b, not only specific identification of other acts, but also of the government's theory for purposes of which the evidence is sought to be introduced. If you look at the Federal Judicial Center's model instruction about how to deal with 404b, that essentially tends to highlight the same thing. And requiring that upfront is much better, I think, for everybody who's involved in the system. Judge Rage, do you also require that kind of a proffer from the government? And then, if you do, how do you actually go about resolving the issue? All in paper? Do you have argument? What's the evidence? What's the procedure? I've never had to have a hearing, an evidentiary hearing, so I guess the answer would be on paper and in oral proffers or arguments. But essentially, I'm going to need three things to rule. I'm going to need to know what the other crime evidence or other bad act evidence is that the government wants to offer, what the theory is on which they're going to offer it to let me make the first analysis of whether it's being offered for a reason other than to prove bad character. And then I'm probably going to need to know how they're going to approve it because otherwise I'm not going to be able to analyze whether what they're proposing to do is more probative than prejudicial. Let me ask you a question. We had this decision by the Supreme Court in the old chief case, which was the felon who was charged with being in possession of a firearm and the issue was whether he could stipulate to his felony status and thereby avoid having the conviction approved. Suppose the defendant says, well, judge, I mean, I'm really impressed in 403 in response to this 404B evidence. And judge, I'm telling you, the government's got a lot of other proof in this case. They don't need this 404B evidence. The incremental probative value is small and the prejudicial effect is as great as it always is with this kind of evidence. Do you ever reserve and say, I think I'm going to hold off on a ruling because I want to make a 403 determination later? I have sometimes held off telling the government, for instance, not to open on the proffered evidence and then getting a little more of a sense of exactly what it is they are going to prove. I'm always a little concerned about arguments that the government doesn't need it from a defendant, but I have, on occasion, reserved and waited until the case developed a little more. Judge Hedder, you had mentioned, and I thank you for this. That's the Santiago rule because you know that the Borgia Le case, the Supreme Court version of that was the one I argued and lost and I know you're sparing me. That was deliberately merciful. Man, I really appreciate it. And my question is the Santiago rule and the approach that you follow, I take it that these must fall within the inherent power of the court to organize and to control as case management in which criminal cases are conducted, just like you control civil cases. That's right. You can hunt the rules through and you're not going to find anything that talks about that. Contrast, for example, Section 3500 in which Congress effectively overrode the Supreme Court decision in the Jenks case, there's nothing that prescribes the matter in that fashion and therefore I do think it's within the court's inherent power. I think it's probably time for us to turn to our first scenario and to begin our discussion of this drug distribution scenario. You'll all have a copy of the case in your written materials but let's go over the specifics of the case briefly. In Scenario 1, as you can see, the charge is distribution of heroin near a school. The salient facts are that a police officer approaches the defendant to buy heroin. The defendant tells the police officer to wait over there near a third party. Once he finds his head, the police officer approaches the third party and pays him $30 for two envelopes of heroin. The 404B evidence is that a second police officer on two occasions, five and six weeks earlier approached the defendant in the same location and purchased heroin directly from the defendant. Let's begin our discussion. Judge Mosley-Grange, back to you. Now the first thing that's going to happen if I heard you right is then the government said we've given notice that there's going to be some 404B evidence and it's going to relate to prior narcotics purchases and sales. And then the government is going to say Your Honor, we need this. We're offering it to prove knowledge and intent. That's my guess. And let's assume now our first version of this is the defense lawyer. This is our assumption. He responds and says Your Honor, we're not going to contest that the officer may have approached. We're not going to contest that the officer may have spoken to the defendant. But our contention is going to be that any gesture by the defendant was totally innocent. And the defense lawyer says that these other acts have nothing to do with this kind of case. There are two incidents where a police officer says he bought heroin from the defendant directly. There's no third party. There's no steering. There's nothing like what's being charged here so that this is not a knowledge and intent about the crime, the kind of crime that's charged in this case. How do you respond? I probably let it in. The analysis that I would go through, I obviously asked myself first, is this evidence relevant to a fact other than propensity? Probably come out ruling that it certainly is relevant to knowledge and intent. In this case, this defendant certainly knows that this is heroin, and he intends that this drugs they'll be made. Then I would move to assess the probative value of that 404B evidence and apply the 403 balancing test. And I probably would come out in this hypothetical with the evidence being more probative than unfairly prejudicial. Well, that unfairly prejudicial part is important, isn't it, Judge Shater? That the emphasis is not just on whether the defendant's claiming, hey, this is prejudicial, but whether it qualifies as this special kind of prejudice. A lot of courts have said that by definition, relevance means prejudicial. So it's unfair that 404B deals with. But it seems to me that one of the problems that we always have when we talk about, for example, labels like knowledge and intent has to do with intent as to what. What the defendant I gather is arguing here is that there's no intent to conduct a heroin transaction in this particular way that's reflected in the 404B material. But the government's response is, well, that's too narrow. What we're looking at is intent to facilitate a heroin transaction as such. And in those terms, I agree with the judge here that what we're looking at is something that meets the requisite test and isn't materially or so substantially overridden by the potential for unfair prejudice that it would keep it out under 403. Judge Raji, let me now turn to you and just say to the defense lawyer who's going down the tubes here so far, desperately knows that if this evidence comes in it makes a huge difference. And if it stays out, it makes a huge difference. So the defense lawyer, let's say, makes the following argument to you. It says, Your Honor, now whether my defendant can actually committed these other offenses has not even been proved. I mean, this is another police officer who says it's my defendant. But assuming that he did, the only evidence you have before you is that my guy's greedy. My guy sells drugs and keeps all the money for himself. The kind of transaction that we have we have charged in this case is that another party has the drugs, another party's making a sale, another party's getting the money and that my guy, the defendant, is somehow steering. And that's a very different kind of transaction, a very different kind of crime and it requires a partner and there's absolutely no evidence that in the other transactions that my guy knew anything about partnerships, that he had any knowledge of how to work with somebody else or that he had any intent ever to work with another person. It's just so different. Am I going to get anywhere? Probably not. Similarity of the other act is a relevant factor for the court to weigh in deciding whether to let in this kind of evidence. But we're not talking about something as dissimilar as a mail fraud or a robbery or something very different. We're talking about two drug crimes and the issue before the jury is going to be when the first officer comes up and uses a street term to buy drugs and this defendant doesn't say what. He tells him to go right across the street whether the issue is going to be, what did he know? The officer was interested in and what was his intent when he sent him across the street? Well, the other two acts go somewhat different. The first one does involve the defendant engaging in discussions with another individual at the very same site. And I think that raises enough questions about whether this site is a general place to offer drugs and the defendant and others are selling there to let it go to a jury. So I don't think the argument is going to persuade me to keep the evidence out. Judge Schiller wouldn't go back and ask another question. There's an argument that says it's coming in. But suppose the government, instead of making the intent argument which has been persuasive to all three of you, suppose the government said it's background your honor. Here's the reason we're offering the other two acts is it shows why police officer in the case charged why he approached this defendant as opposed to anybody else. It's because he knew about the other guy having on two prior occasions bought narcotics. Would that be a persuasive reason to get this in? If I could encapsulate that explanation in a word it would be propensity and the answer would be no. It seems to me that the government has to pick not just a general label or something off the laundry list that 404B contains or something imaginative because 404B is not all-inclusive but rather an apt label, one that fits if I can use a term from still another Supreme Court decision. And so I think the answer to that is no. Judge Miles Ligrange, do you agree with that? I do. Are we unanimous? I do. In fact I think that the whole reason that the government is allowed to put in background evidence of other crimes is so that it's not put in the unfair position of having a jury wonder how two people are dealing in 10 kilograms of heroin on a street corner on a given afternoon out of the blue. Some background is necessary to explain that but this is not the kind of hypothetical where background evidence is really needed to be fair to the government. Well, I'm going to stay with you for a second because I think if we change our scenario slightly to go to the second version that we may have a difference here of views depending on what circuit we happen to be located in instead of making this claim about the gesture was innocent. Attorney General, we're going to defend this case on the theory that the officer never approached this defendant he never had a conversation and nothing happened. That's our defense and now we ask you please exclude these other acts because they no longer are sufficiently probative on our claim that none of this ever happened. Now, are my chances if I'm the defense lawyer of keeping this out are my chances getting any better? In the second circuit your chances have improved considerably because if the defense is that it didn't happen he's not arguing that he didn't have the requisite intent he didn't have the requisite knowledge it's that the officer is lying about what happened on the scene that day. That's going to be enough in the second circuit to keep it up. A prosecutor will try to nail that down by asking for a stipulation that knowledge and intent will not be in the case indeed he may ask for a concession that the judge will charge the jury that knowledge and intent are not issues in the case. Judge Shader, now let's go to your court. Same thing same scenario unfolds and now the government says but judge you know before the defendant offers to stipulate anything they say we got to prove knowledge and intent it's an element of our case what happens? The seventh circuit is much likely to be more sympathetic to that perspective indeed they can probably point to something in the old chief in support of that proposition but the smart prosecutor is still going to ask for the stipulation because you don't want to take a chance I would think in that situation on the prospect of that being the rule and have them forbid from the prosecutor's perspective if there's an acquittal prosecutor can't take that up. Judge Miles Ligrange, in the second version when the defendant saying none of it ever happened and therefore I move to exclude are you more sympathetic to the argument to keep this evidence out? I am in that instance more sympathetic to it you have a defendant saying in the second hypothetical didn't do it I didn't do it so the reason why the government proffered the 404B evidence in the first place knowledge intent in particular becomes a non-issue what if the following happens now what do you say to the defendant are you going to contest knowledge and intent? and the defendant says no it just never happened and the defendant says we're willing to stipulate knowledge and intent if this would have happened then somebody would have had knowledge and intent but it didn't happen and then case gets tried closing argument the defense lawyer gets up and says to the jury look you've heard the prosecution's evidence the officer wasn't telling the truth and furthermore if the officer had ever walked up to anybody on the street maybe it was never heard maybe the officer wasn't in the vicinity but the defendant didn't see him didn't know there was any conversation going on and therefore there was no crime is that a violation of the stipulation can the defense lawyer do that in closing argument having already given away knowledge and intent? I think not I don't think he can have it both ways and if I understand your reworking of the hypothetical that's what you're asking the defendant to do I sort of am and I guess it may not be the most artful way but I guess I'm asking the question judge is how closely do you hold the defendant if you've kept this stuff out to the detriment of the government to making sure they don't try to go through the back door and hint to the jury somehow that you know that there's another theory the jury could consider when this issue or an issue like it arises something in which a ruling is dependent on a position that's been advanced by counsel and this goes whether it's prosecutor or defendant defense counsel what I tell them is you're out in terms of the ability to argue this in front of the jury you've made a commitment to the court your professional responsibility not to advance something that's inconsistent with that and to date I've never had the occasion to figure out what happens if not withstanding that admonition they violated but I make it very plain up front Judge Rage have you had a case where maybe you didn't come up with a closing argument where you initially kept stuff out the defendant it appeared was not going to contest knowledge and intent of the defense case or the cross-examination the defendant did something and you said now it's coming in on rebuttal I have had the type of situation where I've reserved because I've been somewhat skeptical of whether a defendant really could defend the case without putting knowledge and intent in issue and I've had all the representations that no they would not be an issue and then as the case has gone along my skepticism proved right and if the issue was put before the jury then I've let the government go ahead and put in the similar act evidence Steve the problem of course arises as to when that happens if the trial goes along in accordance with the representation and then it's tried to be injected at the time of closing argument it's a much different situation from the one in which the judge can take a second look at it as Judge Rage has indicated that I think probably all of us would do but it's a terribly difficult problem as I say if it comes at that late stage and thank goodness not having had to face it I don't know what the answer to that one is See I haven't had it but I assume it would draw an objection and you'd probably sustain the objection and give an instruction there and this is why the government wants a charge they want the next thing the jury hears to be the judge telling the jury that these are not issues for their consideration Judge Milesley Grange in one case is the defendant pretrial is trying to keep a fluid position they're just they don't have a strong defense just looking for what it is they're going to try to put forward and if they say to you at your honor we deny all the elements of this they don't say anything as specific as our first scenario they don't say it was if there was a gesture it was a mistake they say we deny all the elements we're back I take it then were you going to let the evidence in probably that's what makes these 404 be situations so very difficult I mean it's such a thin line there you know evidence which is relevant to a consequential fact other than propensity also is evidence which arguably shows a propensity so you end up I oftentimes when I'm confronted with 404 be problems end up reverting to questions of is it fundamentally fair to allow this evidence in when you're thinking about fair and you're thinking about how you're going to strike this balance Judge Shader let me just change our facts if I can slightly let's suppose that the two events we're talking about the prior sales there are five months earlier approximately approximately a week apart and we're going to put on ten eyewitnesses to say he wasn't there that he has a lookalike who hangs around the neighborhood and they got the wrong guy on the other occasions and that we're going to end up with three trials in one trial and we can give you the names of the witnesses if you want but that's what this is going to be about that they haven't convicted him of anything yet and that should go into the balance if in good faith the defense lawyer makes them that kind of presentation does that go into the balance? Well it's really hard to treat with that it's much the same as the effort to limit character evidence on the theory that you don't want to have many trials within many trials within trials it seems to me that does become a factor that you're entitled to take into account the idea that that the possibility of that sort of thing is more likely to lead the jury into determining whether the defendant was guilty of the other offense which is after all the reason we keep propensity evidence out to begin with seems to me to bear importantly on whether the matter ought to be included as a result of the 403 balancing Judge Raji let me ask you the reverse of this is suppose the defendant had pleaded to these guilty so you had a guilty plea and you had basically the equivalent of beyond a reasonable doubt proof of guilt as to the two prior occasions does that go into the balance as in terms of whether it's convenient to prove and therefore that also is something you take into account when you decide whether you're going to let this evidence in I suspect it does one is eager to try the case on trial not some other case so if the similar act evidence is going to come in very nice and cleanly one has less concern the hypothetical you put to Judge Shader where it becomes a trial I think the court starts to look at what's going on in terms of how much of the trial time is now going to be occupied trying the similar act I think it would play a part in I think you judge my also Grange we're going to have occasion to look at two other scenarios later one's another criminal scenario and one is a civil one and all of these differ the nuance is different and how hard do you find the 404b slash 403 issues to be in terms of you look at all the evidence issues you're called upon to decide the cause you have to make before and during a trial on the scale of importance and difficulty how do you place these I would say that the 404b determinations that I'm called upon to resolve are among the more challenging evidentiary matters and again it is because of that that kind of thin line between evidence which is relevant to a consequential fact other than propensity evidence which would show for example knowledge or intent or opportunity motive plan that evidence that type of evidence oftentimes is very similar to evidence which clearly shows propensity or the likelihood that an individual that the defendant you know acted in formity with that evidence Judge Shearer you've been doing this even longer than Judge Miles O'Grange and how hard do you find these well I share the notion that they're hard and it seems to me that one thing we don't often think about is that there's an inherent problem with the whole premise of 404b that is that it's counter-intuitive all of us I think believe that somebody else who's committed a crime is once is probably more likely to commit another one recidivism is what that's all about but the law has created a barrier to that and that's because the law has a concern that somebody can be convicted because of the prior offense the same thing that I mentioned in that last hypothetical you gave not because of this one that's a concept that's awfully difficult to explain to a non-lawyer sometimes I think it's difficult even to explain it to ourselves but I think that that's at the root of how we find the difficulties with this O'Grange the last question for this segment is yours it's the same question about the importance of these rulings and when you're called upon to make them you know that 404b evidence can be misused as character evidence you know that a defendant could be convicted just because he or she is a bad person that they could have that impact but it's hard to prove things like knowledge and intent I mean do you worry about these rulings are they on the scale of wary do they rank high in your court well I'm an Olympic class warrior but I can't say that that this causes me any more anxiety than a lot of other rulings perhaps because I have to make them a lot and so it's not the rare case in which I'm presented with a 404 question there are two things that sometimes go through my mind one of which is actually not the concern of the judge and that's second guessing the prosecutor's strategy in the hypothetical we have I am totally perplexed as to why these other acts only six weeks earlier are being offered as prior acts as opposed to simply being indicted and charging the fellow with the three acts but as I said really not the judge's concern what is the other thing that goes through my mind and I think can cause some anxiety is that we are relying on proffers made by the government as to how they're going to prove these acts by the defense as to what they're going to limit themselves to in the defense and then we know that all the rules will be off when we get into the dynamics of a trial and yet we're trying to decide whether what's going to happen is going to be more probative and prejudicial and I guess it's that that will often lead me to wait before I give a final ruling and to be perhaps a little more conservative in not having the government Russian with the evidence unless I'm really sure it's going to be on a material matter other than propensity well it seems to me that we've done this scenario as well as we can do it and I think that we should declare that this particular session is over we'll discuss the remaining scenarios in our second program which will air later in the month on behalf of the federal judicial center I'd like to thank judges