Originally published by Mark Bennett.
House Bill 2777 (Herrero) purports to provide trial courts with broad authority to admit evidence of prior bad acts for the purpose of showing action in conformity therewith in many cases.
The statute would add an article 38.371, which would state, in pertinent part, that:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
…
(3) the character of the defendant and acts performed in conformity with the character of the defendant.
House Bill 2777 is a derivative of the Huffman Special, article 38.37 of the Texas Code of Criminal Procedure, and like article 38.37 it violates due process.
Article 38.37 purports to allow the admission of character-conformity evidence in cases involving alleged sex offenses against children. Abel Herrero’s article 38.371 would broaden the rule to apply to offenses against family members, complainants in dating relationships, people formerly in dating relationships, complainants who are or were in dating relationships with people with whom defendants are or were in dating relationships, and people living together. This is a solution looking for a problem. What’s more, it’s unconstitutional.
Admission of evidence for the purpose of demonstrating general character propensity violates due process.
Texas Rule of Evidence 404(b)(1) prohibits admission of “Evidence of a crime, wrong, or other act … to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” House Bill 2777 purports to abrogate this rule in certain cases.
But even aside from Rule 404(b)(1), the admission of evidence to show the character of the defendant as proof of his conformity with that character violates the defendant’s right to due course of law under the Texas Constitution and due process under the United States Constitution. Admission of such evidence also violates the defendant’s right to trial by an impartial jury, his right to be informed of the nature and cause of accusations against him, his right to effective assistance of counsel, his right to be presumed innocent until proven guilty, and other rights guaranteed to him under established principles of law.
The existence of due process rights can be established by showing a settled historical usage in the United States and in England. In order to determine whether a particular right constitutes a portion of the “due process” accorded to a party, the Supreme Court of the United States has long held that historical precedent ought to be the principal guide. Murray v. Hoboken Land & Improvement Co., 59 U.S. 272, 276-7 (1856). The Court reaffirmed this principle in Hurtado v. California, 116 U.S. 516, 528 (1884), observing that if due process protections are to be any restraint whatsoever on legislative power, they must be understood to go beyond the current law of the land as embodied in statute.
A legal process, according to the Court, “must be taken to be due process of law, if it can show the sanction of settled usage in England and in this country.” Id. Much more recently, the Court has rearticulated the boundaries of due process rights as the “fundamental conceptions of justice which lie at the base of our civil and political institutions.” Dowling v. United States, 493 U.S. 342, 353 (1990). Here the Court cautions against judicial creation of new due process rights, but holds to the principle that historically-established rights should be respected.
Exclusion of Character-Propensity Evidence in History
The inadmissibility of character-propensity evidence is a long-settled rule in the common law of the United States and England. Thus, this principle bears the required ‘sanction of settled usage’ for consideration as a due process right.
In Pre-1776 England
Disfavor of character-propensity evidence is expressed in the common law of England over 300 years ago. In Hampden’s Trial (King’s Bench, 1684), Lord Chief Justice Withins discusses the exclusion of evidence of prior forgeries in a prosecution for forgery. In Harrison’s Trial (King’s Bench, 1692), Lord Chief Justice Holt famously interrupted the examination of a witness when propensity evidence was offered, exclaiming “Hold! Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.”
In Pre-Revolutionary America
Inadmissibility of propensity evidence was established early in the history of American jurisprudence. For instance, prior to the American Revolution, a Massachusetts court held that evidence of prior “bawdy” behavior at a residence was inadmissible in the defendant’s current prosecution for operating a house of ill repute. Rex v. Doaks, Quincy’s Mass. Reports 90 (Mass. Super. Ct. 1763).
In Post-Revolutionary America
The principle that character-propensity evidence must be excluded has been repeatedly recognized by U.S. courts throughout the country’s history. In Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), the defendants were charged with murder following an attempt to rob, and the prosecution introduced evidence that the defendants had committed other robberies before the one involved in the crime charged. The Court, in an opinion by the first Mr. Justice Harlan, held the evidence of other crimes inadmissible: “Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death.” 142 U.S., at 458, 12 S.Ct., at 295. The opinion reaffirmed the principle that “[h]owever depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence and only for the offense charged.” Id.
In Brinegar v. United States, 338 U.S. 160, 174 (1949), the Supreme Court ruled in a whiskey smuggling case that evidence of prior similar acts was inadmissible. In so deciding, the Court noted that the standards it was applying were “historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty, and property.” The Court went further in Michelson v. United States, 335 U.S. 469, 475 (1948), observing that “courts that follow the common law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish the probability of his guilt…. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.”
In an opinion dissenting in part and concurring in part in Spencer, Chief Justice Warren noted that our jurisprudence indicates that character propensity evidence is offensive to due process:
While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause. Evidence of prior convictions has been forbidden because it jeopardizes the presumption of innocence of the crime currently charged. A jury might punish an accused for being guilty of a previous offense, or feel that incarceration is justified because the accused is a ‘bad man,’ without regard to his guilt of the crime currently charged.
Spencer v. Texas, 385 U.S. 554, 573-575, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (Warren, C.J., dissenting in part and concurring in part) (footnotes omitted).
Several United States courts have specifically held that admitting character-propensity evidence in a criminal trial can violate the defendant’s right to due process. After detailed analysis of the historical grounding of the right at issue, the Ninth Circuit Court of Appeals ruled in McKinney v. Rees, 993 F.2d 1378, 1385 (9th Circ. 1993) that the introduction of character-propensity evidence had rendered the defendant’s trial fundamentally unfair in violation of his due process rights. The First and Fourth Circuits have also characterized the rule prohibiting character propensity evidence as constitutional in dimension. See United States v. Ferrer-Cruz, 899 F.2d 135, 143 (1st Cir. Puerto Rico 1990) (“The prohibition against the introduction of “[e]vidence of other crimes … to prove the character of a person in order to show action in conformity therewith,” [is] mandated by Fed. R. Evid. 404(b) as well as due process …”); Lovely v. United States, 169 F.2d 386, 389 (4th Cir.1948) (“The rule which thus forbids the introduction of evidence of other offenses having no reasonable tendency to prove the crime charged, except in so far as they may establish a criminal tendency on the part of the accused, is not a mere technical rule of law. It arises out of the fundamental demand for justice and fairness which lies at the basis of our jurisprudence.”). Dissenting in Estelle v. McGuire, 502 U.S. 62, 79 (1991), Justice O’Connor reasoned that if introduction of propensity evidence served to relieve the prosecution of its proper burden to prove all elements of the offense beyond a reasonable doubt, then the introduction of such evidence must violate the due process clause of the Fourteenth Amendment.
Two circuits have held that due process is implicated by the admission of other crimes evidence, for purposes other than to show conduct in conformity therewith, in the absence of a limiting instruction. See Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir.1981) (holding that it violated due process for the jury to hear “repeated references to the defendant’s criminal past without any limiting instruction to relate this evidence only to the firearm violation and to disregard it altogether in considering the murder count”); Murray v. Superintendent, Ky. State Penitentiary, 651 F.2d 451, 453 (6th Cir.1981) (noting that the Sixth Circuit has held that “[t]he logical converse of [Spencer] is that it is unfair and violative of due process if evidence of other crimes is admitted without a limiting instruction”). The clear import of these cases is that the influence of character propensity evidence on the jury is so prejudicial as to violate the constitution.
Cases Construing Statutes Permitting Character Propensity Evidence
Judicial acceptance of legislative changes to the propensity evidence rule does not mean that the principle of excluding propensity evidence has been abrogated, nor does it mean that protection of this right is no longer guaranteed by due process. At the very least, admission of such evidence is still governed by “general strictures” such as the requirement to weigh the probative value of evidence against its potential for prejudice. See United States v. Guardia, 135 F.3d 1326, 1331 (1998), affirming a trial court’s decision in a sexual assault trial to exclude testimony of four women who alleged that the defendant had sexually assaulted them in a fashion similar to the accusation.
Two states have struck down similar states, notwithstanding the judicial discretion to exclude unduly prejudicial evidence. The Supreme Court of Missouri declared a Missouri statute allowing admission of evidence of prior sexual crimes unconstitutional under the Missouri Constitution even though the statute contained a balancing clause similar to Federal Rule of Evidence 403. State v. Ellison, 239 S.W.3d 603, 607–08 (Mo. 2007). The court noted the long line of Missouri cases prohibiting admission of prior criminal acts as propensity evidence and held “[e]vidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant’s propensity to commit the crime with which he is presently charged. There are no exceptions to this rule.” Id. at 606 (citation omitted).
Likewise, the Iowa Supreme Court invalidated the admission of evidence of sexual abuse of other victims pursuant to Iowa Code section 701.11. State v. Cox, 781 N.W.2d 757 (Iowa 2010). The court concluded that evidence of the “defendant’s sexual abuse of other victims under Iowa Code section 701.11 based only on its value as general propensity evidence violates the due process clause of the Iowa Constitution.” Id. at 772. However, such evidence could “be admitted as proof for any legitimate issues for which prior bad acts are relevant and necessary, including those listed in [Iowa Rule of Evidence] 5.404(b) and developed through Iowa case law.” Id. at 768.
The language of article 38.371(b)(3) is also found in Texas Code of Criminal Procedure article 38.37. No Texas appellate court has been called upon to determine whether Article 38.37 §§2, 2-A offends due process by permitting consideration of character propensity evidence. But Texas cases assessing the constitutionality of Section 38.37, §1(b) [permitting extraneous offense evidence committed by the defendant against the child who is the victim of the alleged offense to show the state of mind and relationship of the defendant and the child] have upheld this section because such evidence has relevance beyond character propensity. In Jenkins v. State, 993 S.W.2d 133 (Tex. App.-Tyler 1999, pet. ref’d), the court of appeals held that the provision was constitutional because it permits introduction of evidence relevant to several non-character-conformity purposes, such as to show “the states of mind of the defendant and child and their relationship;” to show “how one in a position demanding care and guidance of a related person, has failed in such duty and has adopted an unnatural attitude;” to “explain the charged act—an act that would otherwise seem wholly illogical and implausible to the average juror;” and to show “that a peculiar relationship exists, but also how and why the defendant achieved dominance over the child.” Id. at 135. This position was adopted by other courts. Brantley v. State, 48 S.W.3d 318, 329–30 (Tex.App.-Waco, 2001, pet.ref’d); Martin v. State, 176 S.W.3d 887, 900 (Tex.App.-Fort Worth 2005, no pet.).
One Texas court has implicitly held that a statute permitting consideration of character propensity evidence would run afoul of due process requirements. In Bush v. State, 958 S.W.2d 503, 505 (Tex. App.-Fort Worth 1997), the court rejected the appellant’s argument that article 38.36 of the Code of Criminal Procedure expands the admissibility of extraneous acts in violation of rule 404(b):
Article 38.36 merely codifies the age-old res gestae, or same transaction contextual evidence, exception and adds the catch-all phrases “relationship between the defendant and the deceased” and “state of mind of the defendant at the time of the offense.” These two phrases necessarily encompass intent, opportunity, motive, plan, scheme, identity, absence of mistake or accident and knowledge, as well as all other logical inferences which may arise from the previous dealings between the victim and the defendant. Therefore, we hold that article 38.36 does not expand rule 404(b) and, thus, does not offend notions of due process.
Id.at 505 (emphasis added).
In sum, these cases demonstrate that the prohibition of evidence of general character propensity is so deeply embedded in tradition and historical jurisprudence as to create a substantive due process right. Accordingly, evidence of extraneous conduct for the sole purpose of general character propensity must be excluded on due process grounds, and House Bill 2777, which would purport to admit such evidence, is unconstitutional.
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