Motive, Intent, Identity, and Absence of Mistake Under Drew
One of the disadvantages to practicing law in D.C. is that the courts here do not use the Federal Rules of Evidence (FRE). You can’t just consult the text of a particular rule and then the case law that interprets that rule. Instead, you have to go directly to the case law or statute. This makes things unnecessarily burdensome.
What is commonly referred to as “prior bad acts” under FRE 404(b) is known in D.C. as “Drew evidence” after the case that lays out the principle: Drew v. United States, 331 F.2d 85 (1964). The language in Drew will be familiar to anyone who has ever read FRE 404(b). Specifically, it holds that, although character evidence is inadmissible to prove the propensity of a person to commit an offense,
[e]vidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial.
Four elements of the holding in Drew – motive, intent, identity, and absence of mistake — were spelled out in greater detail in a case issued last month by the D.C. Court of Appeals, Todd Matthew Thomas v. United States, 59 A.3d 1252 (D.C. 2013).
The defendant in Thomas was convicted of burglary and sexual assault in connection with a number of home invasions in Georgetown. All the complainants were young white male students. Among the grounds for challenging the conviction was the trial court’s admission of the defendant’s prior conviction of sexual assault in Virginia. Specifically, the government introduced the testimony of a young white male who testified that, similar to the fact pattern in this case, he had woken up after becoming intoxicated to find the defendant sexually assaulting him.
In holding that the trial court abused its discretion in admitting this testimony despite a limiting instruction to the jury, the D.C. Court of Appeals held that prior acts evidence requires a “fairly rigid standard of similarity” to ensure that a defendant is not convicted for mere propensity to commit crime:
There must be enough points of similarity in the combination of circumstances surrounding the two crimes to demonstrate that there is a reasonable probability that the same person committed both due to the concurrence of unusual and distinctive facts relating to the manner in which the crimes were committed. (Internal quotations omitted.)
The government argued in this case that, with respect to motive, the defendant was “motivated to prey on intoxicated young white men in vulnerable positions.” This was not specific enough for the Court. Citing another case in the government failed to meet the requirements for a Drew exception, the Court noted that:
the more common or generalized the motive evidence, the more it verges upon inadmissibility as mere propensity evidence. If, for instance, in a sexual assault prosecution, evidence of prior bad acts against other victims is introduced to show the defendant’s desire to engage in heterosexual sex, the motive is indistinguishable from predisposition – for such evidence to be relevant, the jurors must infer the defendant’s general sexual desire from the prior bad acts.
As for the “identity” exception, the government must show that “the defendant has committed crimes so nearly identical in method that it is likely that the present offense has been committed by him.” To be probative of “intent,” the intent at issue needs to be “so connected with the offense charged in point of time and circumstances as to throw light upon intent.” Finally, with respect to the “state of mind” exception, the government must show a “case of peculiar coincidence” between the charged offense and the prior bad act such that “mere recurrence throws light on mental states.”
“The only possible similarities we can discern on this record,” the Court concluded, “are that both incidents involved intoxicated young white male victims who were assaulted late at night. That is insufficient to meet the ‘fairly rigid standard of similarity.’” Because the trial court’s error was not harmless, the Court reversed the conviction and remanded the case for a new trial.
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