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Particular Examples of Misconduct, § 904.04(2) – “Reverse” Misconduct – Admissibility Test of “Other Acts” of Another

State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz

Issue/Holding (General Standards):

¶14. There are three hurdles that evidence of a person’s other acts must clear: (1) the evidence must be “relevant,” Wis. Stat. Rules 904.01 & 904.02; (2) the evidence must not be excluded by Wis. Stat. Rule 904.04(2); and (3) the “probative value” of the evidence must not be “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by the considerations of undue delay, waste of time, or needless presentation of cumulative evidence,” Wis. Stat. Rule 904.03. SeeState v. Sullivan, 216 Wis. 2d 768, 772-773, 576 N.W.2d 30, 32-33 (1998). Evidence is “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 904.01. This is not a high hurdle; evidence is relevant if it “‘tends to cast any light'” on the controversy. Zdiarstek v. State, 53 Wis. 2d 420, 428, 192 N.W.2d 833, 837 (1972) (quoted source omitted). Additionally, although evidence of bad things that a person may have done “is not admissible to prove the character of a person in order to show that the person acted in conformity therewith,” such evidence may be introduced for other reasons, including proof of “opportunity” and “intent.” Rule 904.04(2). We analyze the evidence against this background.

Issue/Holding (Remoteness): Testimony that as recently as 8 months earlier a clerk had stolen from the store, offered to support the defense theory that the clerk wasn’t robbed by the defendant but rather took the money voluntarily from the till to pay off a drug debt, wasn’t too remote to be inadmissible. ¶16.

Issue/Holding (Habit; § 904.06): Evidence of a store clerk’s “habit” of stealing from the till wasn’t barred by § 904.04(2), “because it went to [his] ability and willingness (“opportunity” and “intent”) to treat his employer’s money as something he could convert to his own use.” ¶17. Thus, this evidence was relevant to support the defense theory that the clerk had voluntarily taken money from the till to pay off a drug debt to the defendant, and not because the defendant was robbing the store.

Issue/Holding (Complainant’s Drug Dealing): Complainant’s selling marijuana at the store where he clerked was admissible, where the defense theory was that the complainant merely turned money over to the defendant to pay off a drug debt and not because the defendant was robbing the store, ¶20.

For general statement, see U.S. v. Montelongo, 10th Cir No. 04-2215, 8/24/05:

Rule 404(b) is typically used by prosecutors seeking to rely on a criminal defendant’s prior bad acts as proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” in the crime charged. The Rule is not so limited in its application, however, and evidence of a witness’ other wrongs, acts, or crimes is admissible “for defensive purposes if it tends, alone or with other evidence, to negate the defendant’s guilt of the crime charged against him.” Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999) (alternations and quotations omitted). This type of evidence is often referred to as “reverse 404(b)” evidence. See, e.g., id.;United States v. Lucas, 357 F.3d 599, 605 (6th Cir. 2004).

(Court further noting that R. 608(b) — equivalent of §. 906.08(2) — isn’t impediment to admissibility: that rule only applies to specific instances of witness’s character for truthfulness; reverse msiconduct by contrast seeks to negate defendant’s guilt by showing a 3rd-party’s guilt in some fashion.)

Constitutional footing for evidence of 3rd-party guilt: Holmes v. South Carolina, USSC No. 04-1327, 5/1/06.

Criticism of label “reverse misconduct,” preference for “nondefendant Rule 404(b) evidence”: U.S. v. Murray, 474 F3d 938 (7th Cir 2007), and expressing view that “(t)he other crime and the crime of which the defendant is accused must be sufficiently similar to make it likely that whoever committed the other crime committed this crime as well, and that standard will not be satisfied unless there is something distinctive about all the crimes that makes them form a pattern, rather than their having merely a chance resemblance.”

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