I'm preparing to teach a session during which I'll cover the use of Rule 404(b) evidence in sexual assault cases. (As most readers of this blog know, Rule 404(b) evidence is evidence of bad acts by the defendant other than the charged offense; such evidence isn't supposed to be used to show that the defendant is a bad person, but may properly be used to show lots of other things, like the defendant's "motive . . . intent . . . plan . . . or absence of mistake.") I did a bunch of research on a fairly common issue, so I thought I'd share it here. Lots of cases say that Rule 404(b) evidence is more likely to be admissible if it is relatively recent. But how old is too old? If a defendant who is charged with a sexual assault committed a similar assault 15 years earlier, can evidence of the prior act be admitted to show a common scheme or plan? The cases don't establish a bright line, as the table below shows. Not Too Remote Too Remote NCSC NCSC State v. Frazier, 344 N.C. 611 (1996) (very similar conduct ranging from 7 to 27 years earlier) State v. Jones, 322 N.C. 585 (1988) (7 to 12 years earlier) State v. Penland, 343 N.C. 634 (1996) (“distinct and bizarre” behavior 10 years earlier) State v. Shamsid-Deen, 324 N.C. 437 (1989) (continuous series of acts going back over 20 years) NCCOA NCCOA State v. Register, __ N.C. App. __, [...]
Faculty Coordinators
