Discussion of Rule 404(b) from: THE DISPARATE IMPACT OF THE MARYLAND RULES ON BLACK AND BROWN INDIVIDUALS

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Rule 5-404(b):

Rule 5-404(b) bans parties from admitting evidence of a crime, wrong, or other act to prove a person’s character “in order to show action in the conformity therewith.”206 However, evidence of a crime, wrong, or other act may be used to prove “motive, opportunity, intent, preparation, plan, common scheme or plan, knowledge, identity, or absence of mistake or accident.”207

The Problems

There are several problems with this Rule including its disparate impact on Black and Brown people; the impossibility of separating dual purposes, or proof of propensity from proof of an offered purpose (e.g., motive, intent, etc.); and its disregard of fundamental constitutional rights.

First, the admission of prior uncharged conduct for non-character purposes disparately impacts people of color simply because Black people are five times more likely to be stopped without just cause than white people. 208

Second, “we expect jurors to determine that [conduct is not accidental] because a particular individual has been involved in several prior instances of uncharged conduct.”209 The potential for jurors to hear, and improperly consider such evidence as proof of propensity, is up to five times higher for Black individuals who, by no fault of their own, have more run-ins with the law.210 Anecdotal evidence supports this conclusion, with one survey participant explaining that “prosecutors look to find ways to offer up evidence regarding prior encounters with law enforcement, even those not resulting in conviction, because it aids the jury in viewing the client as a ‘bad man.’”211 This is even an issue where the prior uncharged conduct is unrelated to the crime at issue, with another participant stating that “judges routinely allow in evidence of dubious connection to the crime at issue, but which shows other crimes or bad acts and is highly prejudicial.”212 Thus, regardless of whether or not a court provides a jury instruction explaining the scope of the evidence under Rule 5-105,213 it is nearly impossible for a jury to separate evidence admitted for one purpose from the propensity the evidence also suggests.214 . . . 

Third, there exists an additional risk to admitting uncharged conduct not contemplated by the rules. That is, jurors may also “use their impressions of the defendant and evaluations of noncharacter evidence to generate a set of alternative stories that explain the event(s) in question.”222 The alternative stories created by jurors are likely to implicitly disfavor people of color as “white subjects tend to assume less favorable characteristics about [B]lack defendants than white defendants and [] such assumptions contribute to these subjects’ greater tendency to find [B]lack defendants guilty.”223 The characteristics intrinsically derived from dual purpose evidence rest on stereotypes, raising the same issues described when discussing an individual’s character for Blackness.

Fourth, these concerns are further amplified by the low standard of proof that governs Rule 5-404(b). If a prior crime is introduced under Rule 5-404(b), it is frequently uncharged or acquitted conduct.224 The conduct, if it was criminal, does not need to be proven beyond a reasonable doubt as it would have to be if it were tried independently. Instead, a jury may consider a prior crime so long as it “is established by clear and convincing” evidence.225 Use of a clear and convincing standard for this purpose undermines a core protection afforded criminal defendants. This erosion of a fundamental right is especially detrimental to Black defendants, who, as previously explained, are much more likely to have documented contacts with the criminal legal system.226 By admitting such evidence, courts are doing for the State what the State has not done–or cannot do–for itself: prove its case beyond a reasonable doubt.

Recommendations

 In light of the fact that (1) individuals are unable to separate dual purpose evidence, (2) Black individuals are significantly more likely to come into contact with the criminal legal system, and (3) people associate bad behavior with Blackness, prior uncharged conduct should not be admitted under any circumstances. Alternatively, the Rules Committee should explain this context in Rule 5-404’s notes, and judges should be required to, if defendants want, give an instruction educating jurors on the fact that people have negative perceptions about Black and Brown people, and as a result they are more likely to have criminal contacts with the legal system because of racialized policing and prosecution.

Footnotes:

• 206 MD. R. EVID. 5-404(b).
• 207 Id.
• 208 Criminal Justice Fact Sheet, supra note 25.
• 209 Goodman, supra note 199, at 10.
• 210 Criminal Justice Fact Sheet, supra note 25.
• 211 See App. at 131.
• 212 Id. at 97; see also United States v. Cunningham, 103 F.3d 553, 556–57 (7th Cir. 1996) (“The greater the overlap between propensity and motive, the more careful the district judge must be about admitting under the rubric of motive evidence that the jury is likely to use instead as a basis for inferring the defendant’s propensity, his habitual criminality, even if instructed not to.”).
• 213 MD. R. EVID. 5-105 (“When evidence is admitted that is admissible as to one party or for one purpose but not admissible as to another party or for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”).
• 214 See Jennifer S. Hunt & Thomas Lee Budesheim, How Jurors Use and Mis-use Character Evidence, 89 J. APPLIED SOC. PSYCH. 347, 350 (2004).
• . . . 
• 222 Hunt & Budesheim, supra note 214, at 350.
• 223 Josephine Ross, “He Looks Guilty”: Reforming Good Character Evidence to Undercut the Presumption of Guilt, 65 U. PITT. L. REV. 227, 262 (2004).
• 224 Ted Sampsell-Jones, Implicit Stereotyping as Unfair Prejudice in Evidence Law, U. CHI. L. REV. 835, 837 (2016).
• 225 Jackson, 230 Md. App. at 459.
• 226 See Criminal Justice Fact Sheet, supra note 25.