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Propensity Evidence and State v. Gresham

By on Jan 13, 2012 | 1 comment

I’m going to start today’s post with a puzzle:

Let’s say you’re in your home one day and you hear absolutely beautiful piano music wafting over from your neighbor. You go over there and see your two neighbors, Jeff and John, standing by a piano.

“What beautiful music!” you exclaim. “Which of you is so talented?”
“Thank you! It was me,” replied Jeff.
“Actually, it was me,” replied John.

What an odd situation! How to decide who’s telling the truth? You take a quick peek around the house and see a few clues. A certificate from Julliard stating John attended for four years. A photograph of John sitting at a piano in an enormously packed concert hall. A book, authored by John, on how to play exceptional piano.

Well that seems easy enough. It’s clear who has the background in world-class piano. How about another?

Jane and Sara are accused of shoplifting from Nordstrom. A security guard said he saw one of them stealing but he couldn’t tell which one. The stolen merchandise was thrown down a sewer grate. When questioned, Jane said Sara was the thief, while Sara said it was Jane. How to decide who’s telling the truth?

Well in this case there’s one more wrinkle. Sara has no criminal record, while Jane has been arrested 10 times in the past for stealing from Nordstrom. Well that seems easy enough. It’s clear who has the background in shoplifting.

Propensity and the Rules of Evidence

Both of these puzzles illustrate the exciting world of propensity evidence. Propensity evidence suggest to a jury to use past conduct to predict current, or future, behavior. Is there any problem with that?

You bet there is. A criminal charge is not like setting the line on a football game. A trial asks for a determination on what happened in this instance, not conduct some statistical analysis from past behavior.

And for our system to make any sense at all, this is how it should be. People should believe that when a citizen is charged with a crime, they are facing penalties for current conduct only, not being re-punished or re-tried for past behavior. For people to have confidence in the system, people have to know verdicts were specific to the crime at hand.

As I’ve discussed before, the rules of evidence are about preventing juries from making decisions that are not based on the case at hand. For example, evidence rule (ER) 408 precludes evidence of settlement negotiations in civil cases, and ER 410 precludes evidence of plea negotiations in criminal cases. In both instances, a jury could think a party was negotiating because they knew they were culpable, which is often incorrect and irrelevant besides (there are an awful lot of reasons people may dispose of a case before trial that don’t include someone actually being in the wrong). In any event, because evidence of these negotiations could taint the decision-making process, that evidence is excluded.

There are similar rules for propensity evidence. The first is ER 609. ER 609 deals with admissibility of criminal convictions only. The basic rule of ER 609 is that any felonies and crimes of dishonesty, e.g. fraud, theft, are admissible, but only if they occurred within 10 years, and only to show a person is not credible, rather than a habitual criminal. This is problematic for reasons I explain below. But since this rule only deals with specific crimes and only in a specific window, it often doesn’t apply. The really difficult evidence to work with is the uncharged bad acts. Uncharged acts are a whole other ballgame.

The rule which deals with those acts is ER 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.”

ER 404(b) includes any prior bad acts, which includes convictions, non-charged crimes, and even non-illegal acts. ER 609 deals with convictions exclusively, but ER 404(b) wraps everything in it.

There are two big provisions to ER 404(b). The first is preventing the admission to show “conformity,” which is just another word for propensity. The drafters of the rule were wisely aware of how insidious this kind of evidence can be in getting results irrespective of the facts of the case.

The other big provision permits these prior bad acts for other purposes, and a non-exhaustive list is provided.

You may wonder how this evidence can come in for this other purpose without it tainting the jury? Why wouldn’t a jury think “once a criminal, always a criminal?” There are two answers. The first is that a side can request a limiting instruction, which requires the judge tell the jury that the evidence can only be used to determine credibility, and not for any other purpose, like that the defendant is a habitual criminal.

The second answer is that, regardless of any limiting instructions, of course the jury will start thinking of the defendant has a habitual criminal. Any other conclusion badly misunderstands how the human mind operates. That the jury knows someone is already a lawbreaker, as opposed to an ordinary law-abiding citizen like them, is like night and day. It’s a complete game-changer. And having to explain uncharged bad acts is even worse because a defendant didn’t have the benefit of due process when dealing with the allegations. In other words, the prosecution can accuse someone of anything under the sun and the defense has no crucible to test the allegation. Since a defendant is already on the defensive, getting extra accusations thrown against them can be completely fatal.

As such, the fight over 404(b) evidence can be protracted and intense. The fight got even harder with the passage of RCW 10.58.090.

RCW 10.58.090


It’s clear ER 404(b) has a predisposition to not allowing bad acts evidence in, which I argue is correct. The proponent of the evidence, in this case the prosecution, has the burden to show the evidence exists for one of these other purposes, and not to paint the defendant as a habitual criminal. If they can’t come up with a credible reason, the evidence stays out.

But RCW 10.58.090 is an exception. This law, passed in 2008, states:

“(1) In a criminal action in which the defendant is accused of a sex offense, evidence of the defendant’s commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b)…”

This statute sought to remove some protections against defendants, but only defendants accused of sex crimes. While sex crimes are certainly insidious, this statute didn’t sit well with me. I’ve got no problem with increasing the penalties for certain crimes, although some of the worst sex crimes come with a life sentence anyway. But this statute wasn’t just about making convictions serious, it was about preventing a defendant from getting a fair trial in the first place.

When I get to talking to people about my work, I’ll get the occasional question on how I can defend those “obviously guilty” people. I’ve got a variety of responses to this question, some less professional than others. But the “true” answer is another question: “What crime can someone be charged with that they don’t deserve effective representation and a fair trial?” I never get an answer because there isn’t one. The worst crimes we have, sex crimes, murder, treason, etc. come with the harshest penalties. That makes the need for due process and an equitable system all the more important.

So I didn’t like this statute, and a lot of other lawyers didn’t either, and it was challenged many times. Preemptively, the legislature noted on the statute itself they had the power to enact this law. Was that true? Eventually the law’s constitutionality went up for our state’s Supreme Court to decide.

State v. Gresham


Gresham was two cases consolidated on appeal. Both were charged with child sex crimes and both appealed their convictions arguing, in part, RCW 10.58.090 was unconstitutional. This opinion came out just a couple of weeks ago, and the results were interesting.

The first case was against Mr. Scherner. Mr. Scherner was charging with molesting his grandchild. The prosecution wanted to bring in evidence of past sexual misconduct of Mr. Scherner. Specifically, Mr. Scherner had a prior history of molesting other young people, in a similar manner as his grandchild, over the course of over 25 years. The prosecution attempted to bring this in under RCW 10.58.090, and in the alternative, as evidence of a common scheme or plan; a permissible exception of ER 404(b). The evidence was admitted.

The other case was against Mr. Gresham. Mr. Gresham was charged with molesting a neighborhood child. Mr. Gresham had a previous conviction for second degree assault with a sexual motivation, but was outside the 10-year window of ER 609. The prosecution attempted to bring in this conviction under ER 404(b) but the court found there was no common scheme between the past conviction and the current charges. The court did allow the evidence in under RCW 10.58.090. Both men were convicted.

The court’s holding started with a two-part analysis. The first part looked at whether RCW 10.58.090 was constitutional and determined it was not.

The essence of this finding was a separation of powers argument, specifically which branch of the government is responsible for creating the rules of the court. Interestingly, both the judicial and legislative branches have influence. The difference consists of whether a rule is substantive or procedural.

A substantive rule controls the definitions of things, like what a crime is, or what the punishment can be. Procedural rules control the process of determining whether someone has committed a crime. Substantive rules are the sole authority of the legislative branch, while procedural rules are the province of the judicial branch. In this case, the court determined RCW 10.58.090 was strictly procedural because it only dealt with the admission of evidence, like ER 404(b). Since the statute directly contradicted ER 404(b), it exceeded the authority of the legislative branch, and was thus unconstitutional.

But the second part of the analysis was whether either defendant’s conviction would be reversed, since their convictions were based in part on an unconstitutional statute. That question is a rather famous one with criminal appeals: “within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected?”

Against Mr. Scherner, the court upheld the conviction. The court determined first the evidence was validly admitted under ER 404(b), notwithstanding the admission under the unconstitutional statute. Further, Mr. Scherner confessed during the investigation phase.

Mr. Gresham was a different story. There was no other means to get the past bad acts evidence but the invalid statute. And the evidence was most of the prosecution’s case. There appeared to be no physical evidence, and Mr. Gresham adhered to his innocence. Because the trial was so based on the now-inadmissible evidence, the court could not say the verdict would have been the same had it not been admitted. The court reversed the conviction and remanded for a new trial.

The main thing we can take from this holding is that the courts do understand how dangerous propensity evidence can be. It’s still allowed in, but only under particular circumstances. The chance for prejudice is extreme. Ultimately the Gresham decision is good for defendants and the public at large. It ensures a fairer trial and it promotes confidence in the system. I feel good defending “obviously guilty” people because I have faith in a system that gives everyone a fair shot.

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  • Elliot

    It sounds like the main reason that propensity evidence is normally disallowed is because juries tend to assign it too much weight. If the goal of a trial is to determine the truth of what happened, using propensity evidence is valid. In your example, the person who had shoplifted from Nordstrom 10 times in the past really is more likely to have been the shoplifter in this new instance.

The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.