Ohio Supreme Court Clarifies Admission Process for Other-Acts Evidence

On September 22, 2020, the Ohio Supreme Court issued a pair of rulings
in two criminal cases to clarify standards for when the state can introduce
evidence of a defendant’s “prior bad acts” at trial.

As noted in the Court’s opinion, the decisions are meant to relieve
some of the long-standing “confusion that exists regarding the use
of ‘other-acts evidence’” under the Ohio Rules of Evidence,
and provide lower courts with a “road map” for assessing when
other-acts evidence can be admitted. They also provide direction on how
courts should instruct juries.

The two cases at issue were:

• State v. Smith, in which the Ohio Supreme Court affirmed the conviction of a Hamilton
  County man convicted of gross sexual imposition;
  and
• State v. Hartman, in which the Court affirmed an Eighth District Court of Appeals decision
  overturning a man’s rape conviction related to an alleged assault
  on a female acquaintance.

Use of Other Acts Evidence

The pair of decisions concern Ohio Rules of Evidence Section 404(b), which states:

“Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.”

Rule 404(B) has created considerable confusion and consternation for courts
tasked with discerning when evidence of “other crimes, wrongs, or
acts” constitutes a permissible exception, and when it is unfairly
prejudicial to the defendant.

Many defense attorneys and advocates argue other acts can be used improperly
as damaging character evidence, and lead to convictions based on past
or subsequent behavior unrelated to the case in which a defendant is on trial.

Though the issue has been argued extensively in Ohio courts, the Ohio Supreme
Court noted in its latest opinion that per 404(B), other-acts evidence
cannot be admitted to prove a defendant has some type of propensity or
tendency to behave in a certain way.

However, the rule permits the admission of other-acts evidence for other
reasons, such as proving motive, intent, plan, or identity, or that the
act was not a mistake or accident.

Other Acts Evidence Admission Process

In an effort to provide clarity, the Court outlined a process for trial
courts to use when determining the admissibility of other-acts evidence.
Per the opinion:

• Courts must determine whether other-acts evidence is relevant not only
  to the case, but also the particular purpose it is being offered by prosecutors,
  such as to prove motive or intent.
• Courts should ensure other-acts evidence is used to address an issue actually
  in dispute. It would be improper for courts to allow other acts evidence
  to prove identity when a defendant has already admitted to their involvement,
  and is claiming another defense.
  • The OH Supreme Court provided examples of when other acts evidence is most
    commonly used:
    • Modus operandi / identity: The Court’s opinion explained that other acts evidence is admissible
      if it establishes a type of “behavioral footprint” which shows
      “signature, fingerprint-like characteristics” that are unique
      enough to suggest the prior act and current crime were committed by the
      same person.
    • Plan or scheme: The Court also stated other acts evidence can be used to show a prior
      act and the current crime were part of some unique and identifiable plan
      or scheme of criminal activity. This may be used to prove identity, or
      to explain motive. In a nod to the show “Breaking Bad”, the
      Court explained that in a trial over illegal drug manufacturing, a defendant’s
      recent theft of the ingredient methylamine from a warehouse could be admissible
      when it is used to prove the defendant’s overarching scheme to manufacture
      methamphetamine.
    • Not accidental: Other-acts evidence can be admitted to show a defendant’s conduct
      was not accidental or a mistake, and to aid in establishing that they
      acted with criminal intent.
• When Courts determine other-acts evidence is admissible, they must conduct
  a balancing test under Rule 403(A), which requires mandatory exclusion
  of evidence, even if relevant, if its “probative value is substantially
  outweighed by the danger of unfair prejudice, of confusion of the issues,
  or of misleading the jury.”

The Ohio Supreme Court also stated that trial courts should document their
analysis of other-acts evidence so reviewing courts can follow the logic
behind their determinations to admit or exclude, and explained that trial
courts must tailor jury instructions to the facts of a case and explain
in plain language the reasons other acts evidence may or may not be considered.

More from our blog:

• When The State Wants to Introduce Prior Bad Acts at Trial
• Ohio Supreme Court Permits “Character” Evidence Per Evid.R. 404(B)