Johnson v. United States

RUIZ, Associate Judge,

concurring:

I agree that Johnson’s conviction should be affirmed, but on a narrower ground than the majority opinion. First, I agree with Judge Ferren’s dissent that the evidence of the boys’ murders in Maryland — as opposed to evidence that the same gun that killed Car-rington was also discharged in the Maryland apartment, and that a gun stolen from that apartment was found on Johnson — was of marginal relevance to the identity of Car-rington’s murderer, and that some of the repeated, detailed references to the boys’ murder were prejudicial. Nonetheless, once the judge decided that the evidence was of relevance to the identity of Carrington’s murderer and overruled the defense’s objection that the evidence was inadmissible in toto, the defense took no action, either by agreeing to stipulate as to the identity of the bullets or by proposing that the evidence be sanitized, to avoid the prejudice. Further, and of prime importance to me, the motions judge preliminarily found, by clear and convincing evidence, that Johnson had committed the boys’ murders; the defense was not unfairly surprised because it had been advised of the government’s intention to use evidence of the boys’ murders; the trial judge twice specifically instructed the jury on the purpose for which evidence of the boys’ murders was admitted, as requested by the defense; and the trial judge concluded that the probative value of the evidence outweighed its potential for unfair prejudice. In the parlance of the majority opinion, the trial court did not abuse its discretion in admitting the evidence as an exception to the Drew rule. Thus, it is not necessary to decide as an alternative ground that the evidence was also admissible because, as “direct and substantial proof of the charged crimes” in this case, see ante at 1101, it was not Drew evidence even though it also would support prosecution of another crime.

In any event, I find the Drew/non-Drew distinction less than helpful. The issue, always, is whether evidence of uncharged conduct is being introduced to prove guilt by propensity or to obtain a conviction by means other than through evidence of the charged offense. If it is, as the majority notes, the evidence is inadmissible. Ante at 1104. If it is not offered for that purpose or is not likely to be used by the jury in that impermissible way, the evidence may be admissible. Then, because we are rightly concerned that evidence of uncharged conduct nonetheless may influence and confuse the jury with respect to the charged offense, we focus on what safeguards are appropriate to protect against unfair prejudice: Is the evidence necessary, or can the same fact be proven otherwise? Should its introduction be delayed to allow for the possibility that the course of the trial may obviate its necessity? How certain is it that the uncharged conduct was committed by the defendant? Does the jury understand the proper purpose of the evidence? This pragmatic approach is preferable to a rule of presumptive inclusion of “non-Drew” evidence or presumptive exclusion of “Drew” evidence. This is not an area for presumptions or formulaic labeling as “Drew” or “non-Drew,” but for careful balancing by the trial court of the probativeness of the evidence against the potential for prejudice, including consideration of measures available, to mitigate prejudice.

Notwithstanding my views on the merits of how we should consider the admission of evidence of uncharged conduct, however, we should not in this case change our law concerning the presumption that has been developed in our caselaw with respect to the balancing of probative value versus prejudice to determine the admissibility of evidence of uncharged conduct. That is, unfortunately, what the majority has done by adopting the *1110 policy in favor of admission that results from application of the test in Federal Rule of Evidence 403, whether “probative value is substantially outweighed by the danger of unfair prejudice,” to uncharged conduct that is determined to come under a Drew exception. The presumption heretofore applied against admission of evidence of uncharged conduct is no longer operative, for once such evidence is determined to be relevant as a result of the government’s showing that the evidence comes within a Drew exception, the FRE 403 balancing test would come into play as it does for all relevant evidence. See ante at 1103 (“We conclude that we should also follow [the FRE 403] policy regarding evidence that is subject to a Drew analysis but qualifies for admission under any of the exceptions to Drew.”) If once deemed to come within a Drew exception, evidence of uncharged conduct is no longer subject to a presumption against admission, but is instead evaluated under the FRE 403 balancing test, the policy in favor of admission in FRE 403 has the effect of reversing the presumption with respect to whether uncharged conduct should be admitted. 1 I recognize that the majority has taken a somewhat more restrictive view than does FRE 403 by suggesting, ante at note 19, that where the prejudice from evidence of uncharged conduct substantially outweighs its probative value, the trial court “should” exclude it. (FRE 403 states that such evidence “may” be excluded.) The majority’s slight revision of FRE 403 still allows, however, for the possibility that a trial judge could admit evidence of uncharged conduct even where the prejudice from its admission substantially outweighs its probative value. Therefore, bearing in mind our heretofore presumption against the admissibility of evidence of uncharged conduct, even with this improvement in the application of the FRE 403 balancing test, I agree with the analysis in Judge Ferren’s dissent, infra at [1113-1115], that the majority has significantly changed our law with respect to the admissibility of evidence of uncharged conduct.

That change is unwarranted. Resolution of this case does not require any such change in our law, as neither the majority nor I believe that the trial court abused its discretion in determining that the evidence was admissible without need of a tipping of the scales in favor of admission. Moreover, the government has not proposed that we adopt FRE 403 and neither party has addressed whether the policy of the Federal Rules of Evidence with respect to the balancing of probative value versus unfair prejudice should be applied to evidence of uncharged conduct. Finally, as Judge King’s concurrence and Judge Ferren’s dissent note, by adopting the balancing test of FRE 403 in the context of evidence of uncharged conduct, yet not adopting FRE 404(b), the majority has gone only part-way toward adoption of the Federal Rules of Evidence that concern admissibility of uncharged conduct, without considering the balance struck in those rules between admissibility thresholds and safeguards. This partial adoption of the relevant federal rules also undermines an important reason for following the rules, the benefit of federal and state court interpretations of those rules. I do not think we should adopt FRE 404(b) in this case for the same reason that we should not adopt only part of the federal rules relevant to evidence of uncharged conduct: we should not change our law in such a sensitive area without even having had the benefit of briefing on the issue.

. I would expect that under the majority's approach trial courts would continue to be keenly aware (if not presume) that evidence of uncharged conduct — even if it comes under a Drew exception — can be very prejudicial.