Defending the Wet Bandits: How to Keep the Kitchen Sink Out of Evidence

Imagine, it’s 2021, and you have a consultation with potential clients, Messrs. Marv and Harry. You meet with them, and they look familiar. Harry has a gold tooth, which you’ve seen somewhere before.  When they tell you their legal troubles, it all comes together.

They are being sued by Mr. McAllister, individually and as representative for a putative class of West Virginia residents who all suffered extensive property damage at their homes when they were away on holiday vacation. Burglars stuffed dish towels in their kitchen sinks and left the water running.

Marv and Harry deny liability. You’re not convinced. You remind them they’ve been caught on camera before, engaging in similar conduct, and the images have been seen by millions of people around the world.  (You’re already mentally drafting juror voir dire to identify any viewers of one of the highest-grossing films of the 1990s.)  Marv and Harry disclaim any knowledge of the movie, continuing to profess their innocence. After consideration, you accept the matter because you love tough cases.

First things first . . . how do you keep those pesky allegations of prior misconduct from coming into evidence at trial?

Courts have recognized “the theory that where a defendant commits a series of crimes which bear a unique pattern such that the modus operandi is so unusual it becomes like a signature, then evidence of such other crimes may be admissible.” State v. Dolin, 347 S.E.2d 208 (W. Va. 1986) (citing e.g., United States v. Medina, 761 F.2d 12 (1st Cir.1985); United States v. Hamilton, 684 F.2d 380 (6th Cir.)). To make matters worse, if you’re in federal court, you may not get any warning that the plaintiff intends to introduce the decades old misconduct against your clients.

FRE 404 (b) (entitled “Other Crimes, Wrongs, or Acts”) initially provides in subsection (1) that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”  But FRE 404 (b)(2) (entitled “Permitted Uses”) throws open the evidentiary door, providing “[t]his evidence may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

FRE 404 (b)(3) then requires the prosecutor in a criminal case to provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it; articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

There is not a similar requirement for the plaintiff in a civil case in federal court, so you’ll need to be proactive in your defense.  In discovery, seek out any FRE 404(b) evidence plaintiffs intend to introduce at trial. Require the plaintiffs to identify what proof they may have that your clients actually committed the prior bad acts and the specific purpose(s) for which they contend the evidence is permitted.

Then, raise the issue with the federal trial court with a motion in limine to preclude the evidence.  You may have valid arguments that your clients didn’t even commit the prior acts, and therefore, such evidence is irrelevant. Even if the trial court believes they did it, you can contest whether the plaintiffs’ intended use for the prior misconduct fits within an exception. Finally, argue under FRE 403 that any probative value of the prior misconduct is nevertheless outweighed by the danger of unfair prejudice, even if the evidence can pass the permissive threshold under FRE 404(b)(2). Ask the federal trial court to address and rule on these issues before trial so that you can adapt your trial strategy accordingly.

Essentially, you’re asking the federal trial court, or your respective state court, to track the Rule 404(b) procedure utilized by state courts in West Virginia.  WVRE 404(b) previously replicated FRE 404(b) – only requiring the prosecutor in a criminal case to give pretrial notice of such evidence. But in 2014, WVRE was amended and now requires under WVRE 404(b)(2):

Any party seeking the admission of evidence pursuant to this subsection must provide reasonable notice of the general nature and the specific and precise purpose for which the evidence is being offered by the party at trial; and do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

(Emphasis added.)

Even before the 2014 amendment of WVRE, West Virginia state courts were applying a multi-step vetting process to analyze admissibility of “other bad act” evidence offered in civil cases. See Syllabus Points 1 & 2, Stafford v. Rocky Hollow Coal Co., 198 W.Va. 593, 482 S.E.2d 210 (W. Va. 1996) (requiring the offering party to identify the specific purpose for which the evidence is being offered under Rule of Evidence 404(b); directing an in camera hearing be held by the trial court, wherein the offering party must prove by a preponderance of the evidence that the acts or conduct occurred and that the opposing party committed the acts; and instructing the trial court to then determine the relevancy of the evidence under Rules of Evidence 401 and 402 and conduct the balancing required under Rule of Evidence 403).

You may never have the good fortune to be retained by Messrs. Marv and Harry. And I may never be able to convince you that they starred in one of the greatest legal movies of all time. But we can all learn from these characters and be mindful of Rule 404(b) evidence in the representation of our clients. We may need to aggressively defend against a plaintiff’s attempts to get our insured driver’s prior street racing convictions into evidence. Or we may doubt a property damage claimant’s assertion their vehicle was stolen and set ablaze in a field for the third time (coincidentally, of course).

Whatever the threat may be, let’s make sure we have a battle plan.

For more information contact Stephen J. Marshall.