404(b) Evidence and the Bare Fact of a Prior Conviction

As readers of this blog know, Rule 404(b) provides that although evidence of other crimes, wrongs, or acts is not admissible to prove propensity, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. N.C. R. Evid. 404(b). Even when offered for a proper purpose Rule 404(b) evidence must satisfy tests for similarity and timeliness. And of course, Rule 404(b) evidence is subject to Rule 403 balancing. As our courts have said, the ultimate test for admissibility of such evidence is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under Rule 403. State v. Boyd, 321 N.C. 574 (1988). While many cases hold that 404(b) prior bad acts evidence passes muster under Rule 403 balancing, that is not universally true. Perhaps the most significant cases in this regard are those holding that 404(b) evidence of the bare fact of a prior conviction does not survive the Rule 403 balancing test. The seminal case on point is State v. Wilkerson, 356 N.C. 418 (2002), in which the court, per curiam, adopted Judge Wynn’s dissenting opinion below. Judge Wynn reasoned that “the bare fact of a defendant’s prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose.” State v. Wilkerson, 148 N.C. App. 310 (2002) (Wynn, J., dissenting). Contrasting Rule 404(b) to Rule 609, which allows admission of the bare fact of conviction [...]