New York’s treatment of prior bad acts and character evidence is, as usual, slightly different than the Federal Rules of Evidence (FRE). This blog picks up right where my good friend Ashley Corbin’s leaves off.[1] In New York, propensity is still a major risk with introducing character evidence, much like the FRE. However, New York’s overall scope of what is permissible is slightly different. This blog will focus on the differences between FRE 404(b)(2) and New York’s treatment of prior bad acts.
Here in New York, the general rule of character evidence stems from People v Molineux.[2] Molineux, which cites Coleman, explains their reasons for avoiding propensity evidence:
a person cannot be convicted of one offense upon proof that he committed another, however persuasive in a moral point of view such evidence may be…. It would lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offenses to produce conviction for a single one.[3]
Molineux, decided in 1901, long before the FRE was introduced, enumerated a familiar set of exceptions to character evidence:
(1) motive; (2) intent; (3) 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 one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.[4]
However, where things get different is that this list is non-exhaustive. Being that New York’s evidence is a mix of common law and statute, there were additions to this list of exceptions. People v. Vails found that this list is “merely illustrative” and it is not intended to be exhaustive.[5] An extension of the reasoning that this list is non-exhaustive leads to the most notable portion of Molineux evidence, “background evidence” decided in Cook and evidence to “complete the narrative” also decided in Vails.[6] In Vails, the court created and applied the “complete the narrative” portion to “the evidence of the prior transaction because the process of buying and making preparations for the sale [of drugs] was inextricably interwoven into this one transaction [at issue].”[7] In other words, facts of inextricably interwoven conduct are admissible, such as a mastermind drug dealer that conducts himself in such a way that is so obvious to being a drug deal. The court goes on to reason:
Reference to the prior sale was intrinsic to the bargaining between defendant and Officer Molfetta. It concerned the price to be paid and the quality of the drugs, providing highly probative evidence relating directly to the crime charged.[8]
Needless to say, this is very different from the FRE. The FRE has exclusions only for “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”[9] Nine enumerated reasons. New York, by aforementioned ruling, does not have an exhaustive enumerated list of reasons.[10] As a result of no enumeration, prosecutors can get very creative in their arguments as to what can complete a narrative or what might be inextricably interwoven. On the other hand, defenders must be equally creative in trying to anticipate what prosecutors might try to enter using Molineux, and then they must properly argue against that. Fortunately for defenders in both systems, notice is required when the prosecutor intends on entering evidence of a prior bad act. FRE has 404(b)(3) and New York has Sandoval.[11]
The key takeaway of New York’s Molineux evidence is that there is nothing stopping either party from at any point from arguing for creating another reason to admit a prior bad act. So, get out there and argue whatever you want. At worst you look silly, at best you can create a new rule, and in between the court might admit it for completing the narrative or whatever else.
[1] Ashley Corbin, Character Evidence, The Advocate’s Advantage (Nov 15, 2022), https://haubadvocacy.blogs.pace.edu/2022/11/15/character-evidence/.
[2] People v. Molineux, 168 NY 264, 293 (1901).
[3] Coleman v. People, 55 N.Y. 81, 90 (1873).
[4] Molineux at 293.
[5] People v. Vails, 43 NY2d 364, 368 (1977).
[6] People v. Cook, 42 NY2d 204, 208 (1977); Vails, at 368.
[7] Vails at 368.
[8] Id.
[9] Fed. R. Evid. 404.
[10] Vails at 368.
[11] See Fed. R. Evid. 404.; People v Sandoval, 34 NY2d 371 (1974).
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