When 404(B)’s use is a Sham: How to Limit Propensity Evidence
By: April Campbell
Addressing a prosecutor’s use of 404(B) evidence, comes Ohio’s highest Court with two notable decisions. State v. Hartman, 2020-Ohio-4440 (Sept. 22, 2020); State v. Smith, 2020-Ohio-4441(Sept. 22, 2020).
The most noteworthy of these is Hartman’s, for two reasons. First, it’s just nice to hear the Supreme Court protect an accused’s right not to have a conviction secured based on propensity evidence; a right it considers to be a “hallmark of the criminal justice system.” Second, Hartman was defended by two OACDL members and dynamic married duo Megan and Joseph Patituce. Nice work!
This is a case in which the alleged victim accused Hartman of raping her, because she willingly performed fellatio on him, deciding to stop mid-action once she realized that Hartman was not her boyfriend . . . Huh. [insert head scratching emoji here].
Anyway, the trial court allowed the prosecutor to do more than just accuse Hartman of this act. It also allowed the prosecutor to introduce an unrelated accusation from Hartman’s ex-stepdaughter under the guise of 404(B), and therein sealed Hartman’s fate. Let’s get real, once a jury hears a child sexual conduct allegation, it can’t think of anything else. Saving the day for Hartman after he was convicted was the Eighth District, who held what is true: we try cases, not people. Simply giving a limiting instruction that the old sex allegation was not to be considered for anything other than 404(B), just does not cut it. The Eighth District reversed, and the Supreme Court agreed.
The takeaway here is that instructions don’t always cure defects. A trial court’s decision to tell the jury three times it can consider 404(B) evidence under any guise listed under 404(B) is akin to telling them they can convict based on character. Thus, if you have a case where the prosecution is trying to get in prior conduct under the guise of 404(B), object both in limine and again at trial, and bring Hartman with you to court.