The standard is 104(b): the judge doesn't have to find by a preponderance that the prior act happened. The judge has to find that the jury could find by a preponderance of the evidence that the prior act happened. (don't confuse this with probable cause: a long and elaborately paved blind alley). Of course, the usual test for relevance applies: permissible purpose, relevant to that purpose, not excluded by rule 403.
So the proponent doesn't have to do much to convince the judge that the prior act did happen. It's just like a conditional relevance question (104(b)): could a reasonable jury find the prior bad act by a preponderance of the evidence?
So we have some kind of low-level gangster: stealing large quantities of various commodities from interstate trucking. The fighting issue here is whether Huddleston knew that the goods were stolen.
So the court says that you can't just slime a defendant, but that if a jury could reasonably conclude that the prior items were stolen, the evidence can come in. The conditional fact that the jury would have to find is that the prior items were stolen: if the jury can find that, then it's OK to consider their sale as probative in the present similar case.
A surprisingly lucid judge here.
The relevant knowledge here is that it really is cocaine: so the premissible 404(b) reason is knowledge. So knowledge, in this case, is sort of like absence of mistake. We can also get it in for plan: one of the counts is conspiracy (an agreement to commit the crime)-- whether or not you had a plan helps to prove the fact of the agreement, and that's an essential element of the conspiracy. Or preparation: that goes to intent (except that in June he didn't know there would be a July transaction yet), but also the conspiracy again (building a business relationship).
Poor Judge Warren lets this in for predisposition (another word for propensity). But even though it was let in for an impermissible purpose, there were permissible purposes, and the evidence was strong. But note that the court shouldn't be deciding that the case was strong: there's no due process there-- a jury is supposed to decide that. So if there's been an error, and the jury has considered inadmissible evidence, it's not good enough for three appellate judges to say "well, the case was strong enough." Harmless error decisions are structurally inconsistent: they can substitute a non-constitutional factfinder for the constitutional one. This is a 6A problem that often goes unacknowledged.
But at least, in this case, the evidence was coming in anyway. This is sloppy at the trial level, though, and it's the kind of thing you see often. And now it gets cited all over the place, whenever the government has a weak case, but wants to dirty up the defendant. This is the problem with weak precedent: it waters down the alertness of judges across the board. The norm should not be to admit prior bad acts, and if they are to be admitted, one should be able to articulate the purposes for which they are to be let in.
The court of appeals ought to be able to do better. Here we're talking about convicting someone for a crime on the basis of other crimes with which they're not even charged. We should be careful with that stuff.
Here, the government wants to offer evidence of an earlier acquitted robbery. Good grief. The government's failure to prove the home invasion robbery beyond a reasonable doubt doesn't preclude letting it in under the lighter standard of preponderance.
Note that collateral estoppel will block prosecution where proof beyond reasonable doubt is required, if the prior litigation were at the preponderance level.
Well, clearly, it means that more evidence about prior bad acts will come in for this category of crimes. Partly this is because nobody likes child molesters; also there's good evidence that this is a mostly-not-treatable pathology, and likely to repeat. It's likely, in other words, that there's a propensity. The court denies this, or at least stops short of saying it, but that seems like what's going on: don't worry about the permissible purposes, because there's "greater latitute" here.
Maybe this isn't an unfair prejudice? But on the other hand, even though someone has a strong preference for a certain sexual act, that doesn't mean that they acted on it in any particular instance. It doesn't mean that you necessarily can't control yourself.
The "greater latitude" rule doesn't apply to sexual assault crimes with adult victims. There's partly a policy judgment here: congress simply decided that this subcategory of crime should be treated differently. But there's also the issue of the complaining witness: it's harder to develop the evidence in the case-- there are difficulties intrinsic to child witnesses that do not attend most adult witnesses. Vocabulary, sense of time, sense of truth, tendency even to report the crime (or intimidation from doing so, or not even knowing what's normal, or how to report) in the first place, etc. So we have a somewhat greater concern about the escape of the guilty here than we might normally.
Here, the state has a pretty compelling argument about opportunity: they need to prove that he would do a thing in a situation where there was a great chance of being caught, in order to show that he would view the camper as an opportunity.
But if just being a creep is a reason to relax the rules for admissibility, where's the stopping point? There are lots of creepy crimes. At the same time, the rules of evidence are an expression of how we weigh the risk of wrongful conviction against the risk of wrongful acquittal, and there's a policy choice that in this kind of crime, we'll err on the side of convicting too many people, relative to other offenses.
Plus, of course, when Congress says "we're going to be tough on child molesters," who is going to argue with them? It's quite politically expedient.
Now, obviously, different values are at stake between 412 and 413-415, but the exact same conduct that we don't consider probative in the victim's history seems to be considered probative in the defendant's. And also, we think that it's more probative in the context of sexual crimes only: under 404 we wouldn't admit prior burglaries (e.g.) to show a propensity to commit burglary (404(a)).
413-415 are not limited to a permissible non-propensity purpose (like 404(b)). 403 is still a screen, but propensity seems to be allowed. This, according to Lilly, is a partial abandonment of the principle against propensity evidence-- maybe it's an experiement.
So is there something about sexual offending that makes that character trait, or propensity, more probative than other kinds of offending? Maybe so.
But there are still concerns: lawyers tend to say "studies show," about these things, but can they really cite those studies, and discuss how their conclusions apply to the situation at hand? Probably not. Now there may well be these studies, but we do the case a disservice by not considering them in detail. And there might well be other characteristics that arise in a manner just like sexual propensities, and persist just as much, and yet they're not admissible even though sexual ones are. Anyway, lawyers tend to mythologize science, and say lots of things without necessarily knowing what they're talking about. And for hundreds of years, we've been skeptical of propensity evidence, so these rules are a kind of touchy development. It's scary to say, categorically, that people with a particular sexual preference are necessarily less responsive to the matrix of social controls in which we live. There's probably solid research out there about some disorders (pedophilia, e.g.), but have we been sufficiently careful about making the decision to abandon our rejection of propensity evidence (a humanities tradition) in light of emerging social sciences information?