Criminal law and procedure are structured around the act requirement: a defendant is prosecuted for performing a specifically identified unlawful act, the criminal trial is designed to determine whether the defendant actually committed that act, and, once the defendant has been convicted and punished, we commonly say that he has paid his debt to society and should be relieved from any additional punishment for the act (a principle that is roughly codified in the Double Jeopardy Clause). The act, not the person, is the basic unit of analysis.
However, a host of recent trends in criminal law are putting tremendous pressure on the old act-based approach and pointing to a new paradigm in which a defendant is punished based on his propensity to commit crime, with little or no regard to the severity of the particular act of which he has been convicted (if, indeed, there has been a conviction at all). Some examples include the use of relevant conduct in the federal sentencing guidelines, three strikes laws and other sentence enhancements based on prior convictions, felon-in-possession laws, civil commitment of sex offenders, and preventive detention of terrorism suspects. Such innovations are suggestive of a system in which we punish bad people, not bad acts. To be sure, there is a wide gray area in which it is unclear whether we are punishing acts or people, but when (for instance) we impose what is effectively a life sentence for the theft of three golf clubs (as was done under the California three strikes law), there can be little doubt that the person, not the act, is the target of our condemnation.
Although sentencing law may most dramatically reveal the competition between the act and propensity paradigms, evidence law is also implicated — perhaps most importantly in Federal Rule of Evidence 404(b), which seems pretty clearly to embrace the act paradigm. More specifically, the rule states that evidence of other bad acts is not admissible to show the character of a defendant or his propensity to commit crime. Yet, to judge by recent Seventh Circuit cases, it seems that evidence of uncharged drug offenses and prior drug convictions are routinely used against defendants in drug cases. (See, for instance, my post here.)
Last week, the court shed some light on the Rule 404(b) exceptions in United States v. Conner (No. 07-3527) (Kanne, J.).
Conner was charged with distribution of crack cocaine in a single transaction on December 20, 2006. Yet, during Conner’s trial, the government presented the jury with evidence regarding other drug transactions involving Conner before and after that date. The trial court admitted the evidence as “intricately related” to the charged crime. The Seventh Circuit, however, determined this to be an improper use of the “intricately related” doctrine.
The doctrine was characterized by the Seventh Circuit this way:
Evidence of other bad acts is admissible when those acts are so intricately related to the charged conduct that they help the jury form a more complete picture of the crime. Under this “intrictately related” doctrine, courts have admitted evidence that is necessary to fill a conceptual or chronological void, or that is so blended or connected that it incidentally involves, explains the circumstances surrounding, or tends to prove any element of, the charged crime.
Because the other bad acts used against Conner involved some of the same cast of characters as the December 20 transaction, the government argued that the evidence established context and showed the relationship among the co-consprirators. But Conner was not actually charged with conspiracy — only with the substantive crime of drug distribution. As to the one transaction that was at issue in the case, the other bad acts did not actually serve to “complete the story.” Thus, the Seventh Circuit characterized the government’s use of the evidence as a “circumvent[ion]” of Rule 404(b).
The court’s analysis suggests that the “intricately related” doctrine might have more play in a case in which conspiracy was actually charged. On the other hand, the court seemed generally skeptical of the propriety of the doctrine, characterizing it as “unhelpfully vague” and quoting earlier decisions in which courts had expressed the concern that the doctrine “threatens to override Rule 404(b).”
But, what the Seventh Circuit gives with one hand (narrow interpretation of the intricately related doctrine), the court takes away with the other (expansive interpretation of the knowledge/intent/mistake exception to Rule 404(b)). Conner lost because, in the court’s view, his other bad acts went to establish his state of mind.
Rule 404(b) does indeed permit the use of prior bad acts to prove knowledge, intent, or absence of mistake. Thus, for instance, it would be proper to use a defendant’s earlier drug transactions to rebut his claim that he had no idea the white powder in his possession was cocaine.
However, Conner did not present a mistake defense or otherwise clearly contest knowledge or intent. No matter, said the Seventh Circuit: “By pleading not guilty to the charge and denying any wrongdoing, Conner placed the burden on the government to prove each element of the crime [including intent] beyond a reasonable doubt.” The court concluded, “Thus, we find that the evidence of Conner’s previous drug transactions was properly directed at an issue other than his propensity to commit the crime.”
The court seems to suggest that the usefulness of prior bad acts in establishing intent negates the possibility that the evidence is being used for propensity purposes. But these purposes are not mutually exclusive. Indeed, Conner’s own bad acts seem most clearly relevant to intent only insofar as Conner’s intent to commit other drug crimes supports an inference that he also intended to commit a drug crime on December 20, 2006 — in other words, that he has a propensity to commit drug crimes.
The analysis in Conner contains no clear limiting principle on the admissibility in drug dealing cases of evidence of other drug transactions. The same criticism that Conner levels against the intricately related doctrine might be leveled against its own expansive interpretation of the knowledge/intent/mistake exception.
One might wonder whether the court is just going around in circles when it narrowly interprets the intricately related doctrine, but then expansively interprets the knowledge/intent/mistake exception. The court makes clear, however, that it believes there is a real difference between admitting other bad acts under an intricately related theory and an intent theory: in the latter setting, the defendant is entitled to a limiting instruction highlighting for the jury that it should not use the bad acts for propensity purposes. So, the court apparently does see itself as doing something to preserve the traditional act-orientation of criminal law by channeling other bad acts evidence into the knowledge/intent/mistake exception. Whether jurors actually pay attention to limiting instructions is another question . . . .