The Judicial Conference Committee on Rules of Practice and Procedure has released its report on proposed rules changes for next year. This report includes a proposed change to Federal Rule of Evidence 404(b). Rule 404(b) prohibits the use of prior bad acts to prove a defendant acted in conformity with his prior bad acts and is thus guilty today (in a nutshell).

The Advisory Committee on Evidence Rules found that “Several Circuit courts have suggested that the rule needs to be more carefully applied.” (p. 40 of report). The committee noted:

1. Requiring the prosecutor not only to articulate a proper purpose but to explain how the bad act evidence proves that purpose without relying on a propensity inference.

2. Limiting admissibility of bad acts offered to prove intent or knowledge where the defendant has not actively contested those elements.

3. Limiting the “inextricably intertwined” doctrine, under which bad act evidence is not covered by Rule 404(b) because it proves a fact that is inextricably intertwined with the charged crime. (p. 40 of report).

The committee has proposed adding the following language to 404(b):

• “articulate in the notice the non-propensity purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose”;

• “do so in writing before trial sufficiently ahead of trial to give the defendant a fair opportunity to meet the evidence—or in any form during trial if the court, for good cause, excuses lack of pretrial notice.” (pg. 44 of report).

Some might wonder if the Federal Rule changes, then should South Carolina update our 404(b) Rule. The answer is likely no because of the small, yet important, difference between our two rules. S.C.R.E. 404(b) is much more limited in what is allowed for prior bad acts:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.

Now look at F.R.E. 404(b):

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

Notice the two missing words in S.C.R.E. 404(b): “such as.” The S.C. Rule is much more limited in its application of the rule and lists specific instances where prior bad acts may be used. The federal rule is more open ended.

The Committee's Three Focus Areas in Comparison to SCRE 404(b)

Perhaps by amending the federal rule to follow the same limited scope as South Carolina’s, the committee’s first issue might be addressed. Under S.C.R.E. 404(b), the prosecutor must choose from an exhaustive list of why he or she is using that evidence. And not on that list is propensity.

The second issue that the committee raises is allowing in prior bad acts where the defendant did not dispute or contest the acts. This will clearly come up with prior bad acts that are non-convictions. The S.C. courts appeared to have handled, or at least addressed, this issue by requiring that any non-conviction prior bad act evidence be clear and convincing. See State v. Perry, 420 S.C. 643, 655 (Ct. App. 2017) (“If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing.”).

The final issue has to do with allowing in evidence of prior bad acts when those acts are intertwined with the charged crime. This is also known as res gestae, and as explained by the S.C. Supreme Court, can be allowed for several reasons:

The res gestae theory recognizes evidence of other bad acts may be an integral part of the crime with which the defendant is charged, or may be needed to aid the fact finder in understanding the context in which the crime occurred. State v. Adams, supra. This evidence of other crimes is admissible:

when such evidence “furnishes part of the context of the crime” or is necessary to a “full presentation” of the case, or is so intimately connected with and explanatory of the crime *513 charged against the defendant and is so much a part of the setting of the case and its “environment” that its proof is appropriate in order “to complete the story **583 of the crime on trial by proving its immediate context or the ‘res gestae’ ” or the “uncharged offense is ‘so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other ...’ [and is thus] part of the res gestae of the crime charged.” And where evidence is admissible to provide this “full presentation” of the offense, “ [t]here is no reason to fragmentize the event under inquiry” by suppressing parts of the “res gestae.”

State v. King, 334 S.C. 504, 512–13 (1999).

The notice requirement is not required in S.C.