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Propensity Evidence and its Perils

Propensity evidence is extremely prejudicial to defendants because it creates an easy and acceptable belief in the prosecution’s case – they acted bad before, so they acted bad again this time.

Proof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution's theory that he is guilty of the crime charged. Its effect is to predispose the mind of the juror to believe the prisoner guilty, and thus effectually to strip him of the presumption of innocence.[1]

However, there are exceptions to this rule. If prior bad act evidence is allowed in, it should not be used to show that the person acted in conformity with their character, but it may be used to show motive, intent, absence of mistake or accident, common scheme or plan, or identity. This case has been codified into SCRE 404(b). Often one piece of evidence may sit in two boxes at once: it can be propensity and it can be used for another purpose. It is for the trial judge to determine the purpose of the evidence and if it passes SCRE 404(b) and 403.

In 2020, the South Carolina Supreme Court clarified that any Lyle evidence needs to pass the logical relevancy test.[2] For many years, the courts had diluted this test to merely a “similarity” between the prior act and charged act. However, it is clear now that there needs to be more: “The State must show a logical connection between the other crime and the crime charged such that the evidence of other crimes ‘reasonably tends to prove a material fact in issue.’”[3]

· State v. Lyle, 125 S.C. 406 (1923) This is the seminal case for discussing prior bad act evidence. The case describes what propensity evidence is and how persuading it can be to a jury. Because of its power, propensity evidence is excluded unless it is being used for another purpose. Lyle lists several exceptions to the rule against propensity evidence, and SCRE 404(b) has codified these exceptions. Lyle requires that any prior bad act that fits in to an exception have a logical connection to the charged crime. It is not enough that the two acts are similar. See State v. Perry, 430 S.C. 24 (2020) for a discussion on this logical connection test and how case law had drifted away from this strict requirement.

· State v. Perry, 430 S.C. 24 (2020) Propensity evidence is evidence that tends to show someone acted in conformity with their character. This evidence is not allowed unless it is used for another purpose such as motive, identity, plan, etc. Sometimes evidence can be both propensity evidence and used for another purpose. Under Lyle, there must be a logical connection or relevancy between the prior act and the charged offense. This case overturns State v. Wallace, 384 S.C. 428 (2009), which created merely a “similarity” test between the prior act and new charge.

· State v. King, 424 S.C. 188 (2018) If the prior bad act was a crime that the defendant was not convicted of, then there must be clear and convincing evidence of the act. See also State v. Cope, 405 S.C. 317 (2013).

· State v. Cotton, 430 S.C. 112 (2020) The court followed up State v. Perry (2020) with another propensity case. The court reemphasized the “logical relevancy” test established under Lyle. The court also reconfirmed the “viability of the common scheme or plan exception” to propensity evidence. See also State v. Durant, 430 S.C. 98 (2020).

· State v. Smalls 422 S.C. 174 (2018) Evidence of prior crime is improper if it does not serve legitimate purpose under SCRE 404(b).

· State v. King, 424 S.C. 188 (2018) Evidence of prior bad acts is generally not allowed to prove propensity. However, if it is being used for another purpose, then it could be admissible.

· State v. Cutro, 365 S.C. 366 (2005) The standard for joinder of a trial and Lyle evidence are separate and distinct. Prior bad acts that are not by conviction must be proved by clear and convincing evidence; and a trial court should hold a preliminary hearing to determine if the acts fall within the exception of SCRE 404(b). The standard for a joinder trial allows for charges to be tried together when the separate indicted offenses are of the same general nature and involved “connected transactions closely related in kind, place, and character[.]” The trial court does not need to conduct the same fact-finding “mini-trial” as it does with Lyle evidence because this has already been done through the law enforcement investigation process as well as the grand jury indictment stage.

· State v. Thompson, 420 S.C. 386 (Ct. App. 2017) A trespass letter that put defendant on notice that he was banned from an apartment was not prior bad act evidence. The Court of Appeals held that a person can be banned for many reasons, and the apartment manager did not explain why the defendant was banned.

· Citizens Bank of Darlington v. McDonald, 202 S.C. 244 (1943) Prior bad act evidence can be used in both civil and criminal trials. See also Judy v. Judy, 384 S.C. 634 (Ct. App. 2009); Winters v. Fiddie, 394 S.C. 629 (Ct. App. 2011).

[1] State v. Lyle, 125 S.C. 406 (1923). [2] State v. Perry, 430 S.C. 24 (2020). [3] State v. Perry, 430 S.C. 24 (2020).


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