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
- 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.
- The OH Supreme Court provided examples of when other acts evidence is most commonly used:
- 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.