In October 2003, a Durham, North Carolina jury convicted novelist Michael Peterson of killing his wife. Peterson, author of A Time of War, told authorities that his wife had fallen down a flight of stairs in their home after drinking alcohol and claimed that the fall killed her. His conclusion did not persuade prosecutors,1 who had uncovered remarkable evidence that 18 years earlier, Peterson's next-door neighbor in Germany, a woman unrelated to Peterson, had died alone in her home after a fall down a flight of stairs. This coincidence had a sinister twist, even though Peterson was neither charged with nor convicted of any crime involving the neighbor's death, and German officials deemed the neighbor's death accidental.2
The North Carolina court allowed Peterson's jury to hear the evidence about the neighbor in Germany3 after an autopsy on the neighbor's exhumed body conducted just before Peterson's trial revealed that repeated strikes to the head, and not the fall, had killed her. Supplementing the autopsy was testimony from an eyewitness who had seen Peterson running from the house on the night the neighbor died. Under the trial court's instructions, the North Carolina jury could consider the evidence from Germany relevant to show 1) Peterson's mental state, including his intent and knowledge, and 2) that his wife had not died by accident.4 The jury convicted Peterson of first degree murder. Afterward, Peterson's attorney, David Rudolf, called the evidence from Germany "very, very damaging."5
Like the court in North Carolina, California courts also would have admitted the evidence from Germany under Evidence Code Section 1101(b) had Peterson committed the crime in California. That section permits a party to present evidence of a person's behavior if the evidence is relevant to prove a fact "such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident…." The power of Section 1101(b) is perhaps unparalleled in the Evidence Code. The obvious impact of the evidence the section regulates should invite attorneys to use that section whenever possible. Inventive strategies using Section 1101(b) may lead to the introduction of otherwise prohibited evidence.
Practitioners can utilize Section 1101(b) in ways that expand its reach and enhance its influence before and during trial. The statute lists permissible uses--for instance, to prove motive, identity, and intent--that are not exclusive. Moreover, courts have developed different tests for the admissibility of evidence under Section 1101(b). Understanding these various judicial interpretations of Section 1101(b) is essential to devising creative uses of the statute.
Section 1101(b) packs a wealth of possibilities in a brief paragraph:
Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
Lawyers often incorrectly refer to Section 1101(b) as the statute that permits the introduction of evidence of "prior bad acts." That shorthand reference, perhaps as much as anything, perpetuates the misunderstanding--and limited use--of the statute. In reality, the section does not restrict the admissible evidence to "prior" acts or to "bad" ones. It permits a party to introduce behavior that occurred before or after6 the alleged acts of the case on which civil or criminal liability is premised. It allows evidence of good and bad conduct7--though prior conduct and bad conduct, by their timing and character, are more likely to draw attention under Section 1101(b). Not surprisingly, most of the cases analyzing Section 1101(b) emerge from criminal prosecutions. Still, the statute applies equally to civil cases.8
The last clause of Section 1101(b), following immediately after a recital of permissible evidence, delineates the impermissibility of any proof of a person's "disposition to commit" a crime, civil wrong, or other act. Evidence of criminal propensity is excluded "not because it has no appreciable value, but because it has too much."9 Character evidence is not admissible under Section 1101(b).
Character evidence may be admissible under a very few exceptions under statutory and case law, but never under Section 1101(b).10 According to the Reporters' Notes to Section 1100, while character evidence carries a "slight probative" value, it may be unfairly "prejudicial," distracts from the "main question of what actually happened," and may reward or punish people based not on their actions but on their character. In contrast, the evidence that is admissible under Section 1101(b) is evidence of behavior and can carry exceptional weight with a jury.
In theory, a court will admit only relevant evidence.11 Traditionally, any evidence that tends to prove a fact is relevant.12 That standard, however, is too abstract and vague to offer practical direction. Another way to look at relevancy is to answer three questions:
1) Did the alleged act occur?
2) Who did it?
3) What was the person's state of mind when doing it?
Answering each question determines an ultimate fact in the case: the act, the actor's identity, and the actor's mental state. Evidence presented under Section 1101(b) is relevant if it answers any one of the three questions.
Accordingly, courts have devised three tests for the admissibility of most evidence under Section 1101(b). Each test corresponds to one of the three questions of relevancy. No generally agreed name applies to each test. However, each test lends itself to a descriptive appellation. To determine whether evidence of the act at the heart of a civil lawsuit or a criminal prosecution is admissible--or, did the alleged act occur?--courts apply what can be called the common features test, which is a moderately difficult test to meet. To determine whether evidence of identity is admissible--or, who did the act?--courts use what can be deemed the distinctive acts test, which is a stringent test. Finally, to determine whether evidence of mental state is admissible--or, what was the person's state of mind when doing the act?--courts employ what can be termed the sufficient similarity test, which is a more relaxed test. Opportunities for creative uses of the statute exist under each test.
The Common Features Test
To prove the acts charged under a civil or criminal complaint, Section 1101(b) evidence must pass the common features test. This test analyzes prior or subsequent acts to determine whether they have a sufficient number of common features and "a high degree of similarity"13 with the alleged acts. Evidence of uncharged misconduct, for instance, used to show a common plan or scheme, "must demonstrate not merely a similarity in results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are individual manifestations."14 Nothing unusual or distinctive is required, just a high degree of similarity between the alleged acts and the prior or subsequent acts.15 As a practical matter, similarity exists if the court believes it does. The test is grounded less in objectivity and more in an advocate's powers of persuasion.
Evidence of other crimes that a person committed in an identifiable style may support the conclusion that the person committed the crime charged. Consider, for example, a dentist who molests sedated patients over a period of years. Assume that the dentist's most recent patient regains consciousness during the molestation and reports it. The dentist denies the act, claiming that the patient imagined it as a side effect of the anesthesia. Evidence of separate acts that are highly similar is sufficient to establish a logical relevance between the two. Evidence that the dentist had molested other sedated patients is enough to establish that the alleged act is part of a general plan. Molesting other women before or after the act charged is strong evidence of a general plan--and is admissible to prove the general plan.16 This is a recognized use of Section 1101(b) evidence.
A nonstandard but equally legal use occurs when the evidence is offered to show a person's ability to commit an act. In a criminal case,17 a defendant was charged with violating Vehicle Code Section 23152(b), driving with a blood-alcohol concentration of .08 or greater. The defendant's percentage was remarkably high--.48. Typically, .40 is associated with a stupor, and .50 is associated with a coma.18 The defense claimed that the test yielding a .48 result was flawed because no one could achieve that high level and still drive a car. The prosecution presented evidence that the defendant had a prior DUI conviction with an even higher blood-alcohol concentration--.54. In both instances, the defendant drove into a parked car.
The "ability" to do an action is not listed as one of the categories in Section 1101(b). Nevertheless, ability is a fact relevant to establish that the act occurred. In this case, pursuant to the common features test, the evidence that the defendant drove with a blood-alcohol concentration of .54 was evidence of his ability to drive with a level of .48 and was relevant to prove that the act had occurred.
The Distinctive Acts Test
The most stringent test for admissibility of evidence under Section 1101(b) is the distinctive acts test for evidence offered to prove identity. The test is strict because evidence admitted to show identity is particularly powerful and prejudicial.19 Evidence of prior or subsequent acts used to prove identity must be so similar to the alleged conduct that it "share[s] common features that are sufficiently distinctive [to] support the inference that the same person committed both acts."20 What features qualify as distinctive? According to the California Supreme Court, they should be "like a signature."21
Ordinarily, parties to a lawsuit use Section 1101(b) to present evidence against a defendant or a victim of a crime. However, parties can use the statute to present evidence of behavior by anyone. For example, a criminal defendant may introduce Section 1101(b) evidence to prove that someone else did the crime.22
Still, the section is an effective tool for prosecutors, as illustrated by People v. Lawrence.23 In that case, the police arrested the defendant after they caught him in an apartment in which an informant had purchased $500 worth of amphetamines. The police found the drugs--white, double-scored mini-Bennies--in plastic bags that each contained either 100 mini-Bennies or 1,000. Some of the plastic bags were stored in a brown paper bag. At trial, the defendant, who did not live in the apartment, testified that he did not know the drugs were there and that they did not belong to him. To prove that the defendant was the person who had tried to sell the drugs to the informant, the prosecution presented evidence that the defendant had tried to sell two plastic bags, each filled with 1,000 double-scored mini-Bennies and stuffed into a brown paper bag, to an undercover police officer just months before his arrest. The trial court and the court of appeal found the earlier evidence sufficiently distinctive to warrant its admission at trial to prove identity of the person who sold the drugs to the informant.24
The distinctive acts test to prove identity is so stringent that it may exclude some important evidence. Yet not all evidence that points to identity is admitted directly to prove it. Other categories of proof that carry a lower evidentiary burden can substitute for proof of identity.
Motive is one of those categories. Facts denoting motive can link a party to the alleged acts. These facts, when used to prove motive, can lead to inferences that prove act, identity, or mental state. Motive is an intermediate fact, not an ultimate fact. As such, motive may be a vehicle for determining the essential elements of a case. The test for evidence of motive is different--and more liberal--than the three other tests for relevancy:
In contrast, "the intermediate fact of motive" may be established by evidence of prior dissimilar crimes. Similarity of offenses [is] not necessary to establish this theory of relevance for the evident reason that the motive for the charged crime arises simply from the commission of the prior offense. The existence of a motive requires a nexus between the prior crime and the current one, but such linkage is not dependent on comparison and weighing of the similar and dissimilar characteristics of the past and present crimes.25
Evidence presented to show that the defendant had the motive to commit the act can have little or no similarity between the prior (or subsequent) conduct and the acts in the present lawsuit or prosecution. The prior or subsequent acts and the alleged acts can be entirely dissimilar.26
Moreover, motive "may be material" when evidence of the "criminal's identity is circumstantial."27 Even in that situation, courts permit considerable latitude in presenting evidence.28 For instance, in People v. Gonzales,29 a prosecution for murder, the district attorney told the jury in his opening statement that he expected to present evidence of the defendant's motive. The motive, he explained, was that the defendant had raped a woman, and she told the murder victim about the rape. The defendant thought that the murder victim would tell the police. During the people's case, the prosecutor called the rape victim as a witness. The court, however, barred details of the rape. It only allowed the rape victim to testify that she told the murder victim "what had happened."30
After his conviction for murder, the defendant appealed, claiming that the prosecutor's comment about motive during his opening statement was unfairly prejudicial. The court of appeal disagreed, noting that the trial court had erred in not permitting the prosecutor to question the rape victim about the facts of the rape. The evidence of motive--in this case to prove identity--should have been admitted.31
If identity is an issue, and evidence gathered to support it does not meet the rigid distinctive acts test, evidence of motive may provide a powerful alternative. The test for motive merely requires a "nexus between the prior" or subsequent act and the alleged acts. It does not require a signature.
The Sufficient Similarity Test
Evidence of mental state under Section 1101(b) must pass the sufficient similarity test. This evidence need only consist of prior or subsequent acts sufficiently similar to the alleged acts to allow the inference that the defendant probably had the same mental state during the prior or subsequent acts and the alleged acts.32 A court wrote, "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent."33 This applies to proof of other states of mind,34 such as knowledge35 and motive.36
The case of Nelson v. Gaunt is illustrative. In May 1968, a physician assured a patient that he could enhance her breasts by a series of injections of an inert, harmless substance called silicone. At his trial for fraud, he testified that he had not given any silicone injections after 1967. The plaintiff, however, presented evidence that the physician had been arrested and convicted of supplying illegal silicone injections three months before she met him in February 1968. The trial court and the court of appeal determined that the evidence was admissible to prove fraud. The prior conviction proved that the physician knew silicone was unsafe, and his representation to the contrary was false.37
The evidence had the additional impact of impeaching the physician. Thus, Section 1101(b) can be used with devastating consequences to establish direct evidence of knowledge and to impeach a witness who claims lack of knowledge.38
The most flexible use of Section 1101(b) occurs when applying the sufficient similarity test to prove a party's mental state. If warranted, alternatives exist to the categories listed in the statute. For example, the need to prove malice or oppression39 arises in civil actions that seek punitive damages.40 Section 1101(b) can help to prove those elements.
In Weeks v. Baker & McKenzie, a high-profile sexual harassment case, a plaintiff sued a key partner in a large law firm who repeatedly groped female secretaries and made salacious comments. The firm had learned of the partner's behavior but did nothing to protect its female employees from it. One of the secretaries filed a sexual harassment action against the partner and his law firm. At trial, the secretary presented evidence of the partner's sexually harassing behavior directed at other women. The trial court properly admitted that evidence to show malice, one of the elements of punitive damages liability. The evidence was not, however, admitted to prove that the partner had sexually harassed the secretary: "Evidence of [the partner's] past conduct, and that he had been warned or reprimanded as a result of that conduct, tended to prove that he was fully aware that similar conduct would cause injury, and acted either with the intent to cause injury or with a willful and conscious disregard of [the secretary's] rights."41
Similarly, malice is an ultimate fact that is necessary to prove guilt in some criminal cases. For instance, to prove the crime of intimidation of a witness, the prosecution must establish that the defendant "knowingly and maliciously" prevented or attempted to prevent the witness from testifying.42 Section 1101(b) can help to establish malice in criminal cases by permitting a prosecutor to present evidence of prior or subsequent acts relevant to that fact.43
Sometimes, creative approaches to using Section 1101(b) can complicate the analysis and prompt counsel to overlook an easier strategy. Attorneys must scrutinize the elements of their case and the supporting evidence to determine which of Section 1101(b)'s categories they can stretch to cover the case and which already apply. For instance, in a prosecution for possession of stolen property, the jury must consider whether the defendant had possession of the property and an opportunity to commit the crime. While possession is not a category enumerated in Section 1101(b), other elements of the crime are. Possession occurs when a person knowingly exercises direct or indirect physical control over something.44 Thus, the key issue of proof for possession is knowledge, one of the existing Section 1101(b) categories.
Merely the prospect of a judge admitting Section 1101(b) evidence can change the course of a case, even prompting a settlement. Consider a scenario in which the plaintiff receives health insurance through his employment. He becomes angry at the insurance company's bureaucracy, so he calls the insurance company more than 400 times during a one-year period to complain about coverage, berate employees, and threaten criminal charges against them. The insurance company terminates his policy for failing to cooperate, which is a violation of the policy. The insured sues for bad faith. The company asserts an unclean hands defense.
In preparing its defense, the insurance company uncovers evidence that the insured has repeatedly visited doctors' offices and written to and called state administrative agencies to "raise hell" about the insurance company. In some of those visits and telephone calls, the plaintiff has used foul language and threatened criminal and administrative action against the physicians and their employees.
But this case has an interesting wrinkle. The unclean hands defense is equitable,45 which means that the judge can require a separate trial for that defense. If the judge does so, the jury will not learn about the insured's disruptive behavior. Clearly the power of Section 1101(b) lies even in the possibility that a jury may hear highly prejudicial evidence.
Evidence under Section 1101(b) can be so prejudicial that the law requires "extremely careful analysis" before admitting it.46 Once a court has determined that evidence is relevant under Section 1101(b), it must then determine whether the evidence contravenes "other policies limiting admission, such as those contained in Evidence Code section 352."47
Section 352 permits a court the discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence under Section 1101(b) may invite evidence rife with suggestion of bad character and propensity to commit the alleged acts. Such evidence, of course, is inadmissible under Section 1101(b), but it is impossible to strip all suggestion of character and propensity from evidence of conduct. Section 352, therefore, is an important bulwark against the unintended but sometimes predictable result that evidence presented under Section 1101(b) may be unfairly prejudicial or could invite a trial within a trial.48
The protection Section 352 affords is so important to a fair trial that a court must do more than state its decision regarding admissibility on the record. Proof that the court analyzed the evidence must also appear on the record, though the record need not reflect the actual analysis.49
Basic strategies can ensure that Section 1101(b) evidence survives Section 352. First, counsel should limit the number of instances of conduct that are offered as evidence. Correctly or incorrectly, courts often link prejudice under Section 352 with the number of specific instances of conduct offered under Section 1101(b). Also, limiting the number of witnesses offered to prove the Section 1101(b) evidence may lead a court to determine that the amount of time spent on the evidence is reasonable.
Next, comparing the seriousness of the Section 1101(b) evidence with the seriousness of the alleged conduct helps to give perspective to the importance of the prior or subsequent act. Evidence under Section 1101(b) is more likely to survive scrutiny under Section 352 when the alleged acts are more serious than the Section 1101(b) evidence. In that event, unfair prejudice is difficult to argue.50
Third, the evidence presented under Section 1101(b) should be as similar as possible to the alleged acts. The greater the dissimilarity, the more likely a court is to perceive the Section 1101(b) evidence as inadmissible character evidence.51
Fourth, requesting that the court instruct the jury at the time the Section 1101(b) evidence is admitted about the limited use of the evidence may dampen arguments that the evidence generated unfair prejudice. Although it is not necessarily error to wait until the end of the case to instruct the jury, a court's decision to admit the evidence is more likely to withstand scrutiny on appeal if the instruction occurs both when the evidence is admitted and at the end of the case during jury instructions.52
Finally, closing arguments must not overstate the use for which the court admits the evidence. Arguing Section 1101(b) evidence for another purpose could lead to objections that trial counsel violated the court's pretrial orders, used improper character evidence, or both--and either can cause a mistrial.53 During closing argument, trial counsel should not overstate and transform Section 1101(b) evidence from facts regarding behavior to facts denoting character. The evidence is powerful enough when used correctly.
Using Section 1101(b) evidence correctly is critical, but learning to use it at all is paramount. With so few cases going to trial, litigators sometimes overlook the leverage that Section 1101(b) can yield in pretrial maneuvering. Still, perhaps the most powerful component of evidence at trial lies in the strategic use of the intricacies of Section 1101(b).