Rule 404(b): The Bare Fact of Conviction Rule

Evidence Rule 404(b) allows for the admission of evidence of other crimes, wrongs, or acts for purposes other than propensity, such as proving motive, opportunity, intent, preparation or plan. In a series of posts, I’ll explore common issues that arise regarding Rule 404(b). First up is the bare fact of conviction rule. As a general rule, the bare fact of a defendant’s conviction is not admissible under Rule 404(b). The North Carolina Supreme Court established the bare fact of conviction rule in State v. Wilkerson, 356 N.C. 418 (2002), where it reversed the decision below (State v. Wilkerson, 148 N.C. App. 310 (2002)) for the reasons stated in Judge Wynn’s dissent. See also State v. McCoy, 174 N.C. App. 105, 110-111 (2005) (reversing because of Wilkerson error); State v. Scott, 167 N.C. App. 783, 785-86 (2005) (same). In his Wilkerson dissent (subsequently adopted by the Supreme Court), Judge Wynn reasoned that 404(b) evidence is admissible only for certain purposes. Wilkerson, 148 N.C. App. at 319. The bare fact of conviction, he reasoned, “would rarely, if ever, be probative of any legitimate Rule 404(b) purpose.” Id. Rather, it is the facts and circumstances of the offense that have probative value. Id. Additionally, he concluded, even if the bare fact of conviction had any probative value for Rule 404(b) purposes that value is substantially outweighed by prejudice, requiring exclusion under Rule 403. Id. The Wilkerson rule prohibiting the admissibility of the bare fact of conviction under Rule 404(b) is in contrast to admissibility [...]