Rule 404(b): The Requirement of Temporal Proximity
Published for NC Criminal Law on May 21, 2013.
As I noted in my last post on Rule 404(b) evidence, even when the evidence is relevant to an issue other than propensity or disposition, admissibility is “constrained by the requirements of similarity and temporal proximity.” State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 159 (2012) (quoting State v. Al-Bayyinah, 356 N.C. 150, 154 (2002)). In this, my final post on Rule 404(b) evidence, I’ll explore the requirement of temporal proximity.
Temporal proximity is part of the analysis because, as a general rule, the probative value of the other crime, wrong, or act diminishes as the event becomes more remote. See, e.g., State v. Barnett, __ N.C. App. __, 734 S.E.2d 130, 134 (2012). There are no bright line rules regarding temporal proximity for purposes of Rule 404(b) admissibility. State v. Maready, 362 N.C. 614, 623-24 (2008). Compare, e.g., State v. Jones, 322 N.C. 585, 587–91 (1988) (in a child sex case, a seven-year gap between the last act on the witness and the first act on the victim made the event too remote to show common plan or scheme), with State v. Carter, 338 N.C. 569, 588–89 (1994) (in a murder case, an eight-year gap between a prior assault and the homicide at issue did not make the incident too remote for purposes of establishing identity). The North Carolina Supreme Court has instructed that remoteness must be considered in light of the specific facts of each case. State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 160 (2012).
The proffered purpose of the 404(b) evidence affects the temporal proximity analysis. Beckelheimer, 726 S.E.2d at 160. For example, remoteness in time may be significant when the 404(b) evidence is introduced to show that the crime arose out of a common scheme or plan. State v. Lloyd, 354 N.C. 76, 91 (2001); State v. Carter, 338 N.C. 569, 588 (1994); State v. Mobley, 200 N.C. App. 570, 577 (2009). On the other hand it may be less significant when the evidence is proffered to show
- modus operandi, Beckelheimer, 726 S.E.2d at 160;
- state of mind, such as malice, State v. Maready, 362 N.C. 614, 624 (2008);
- motive, State v. Locklear, 363 N.C. 438, 448 (2009); State v. Haskins, 104 N.C. App. 675, 682 (1991); or
- lack of accident, Locklear, 363 N.C. at 448.
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