Rule 404b Extraneous Offenses

Now we are starting out with comparison of the Texas Rule and the FRE and basically what you see is that it’s roughly the same thing in term of structure. It starts out with the prohibition 1 rule, the Texas rule calls it, it’s not admissible to prove the character of a person in order to show action in conformity therewith.

The Federal rule has a little bit different language but it’s basically the same thing “it says it’s not admissible to prove a person character in order to show that the person that the person character on a particular occasion the person acted in accordance with the character”. But essentially the same thing it’s just two different ways of saying propensity. Then the next part is of course the exceptions and this is almost word to word the same. Motive, opportunity, intent, preparation, plan, knowledge, identity absence of mistake or accident! That’s pretty much the same in both rules. What it doesn’t say there this laundry list is not exhaustive.

These are just some of the examples but the admissibility is not limited to those and then the 3rd part is of course the notice part. Now the only thing that is in the Texas rule that we don’t find in the federal rule is language down at bottom. This would be the bottom right for you all, other than that arising in same transaction and that refers to distinguish between Extrinsic evidence and Intrinsic evidence which we will get to in a few minutes.

Extraneous means existing or coming from the outside; Black’s Law Dictionary says “anything that is beyond or foreign to the offense for which the party is on trial” but essentially that’s kind of mouthful but it’s essentially anything that is extraneous is just something that is not in the indictment. It is an easy way to remember it something that’s not in the indictment.

Charles Allen Wright said that 404 (b) was one of the most hotly litigated and debated issues in evidence. So talking about being a play right, what better place to start is Broadway. Now Broadway 1973 case, this is the good old days. This is when things were really hard, extraneous offenses were very difficult to get in. This is Broadway story. Phillip’s grocery; a little place in Dallas receives a box—1971—receives a box of American Express traveler’s check so when they open up the box Mr. Philips I guess realizes that there are a hundred travelers check missing from delivery so of course he reports it to American Express.

About a month later George Broadway goes into a Uni Royal merchandising company in Dallas Texas and negotiates one of these traveler’s checks that were identified as missing from the shipment that went to the Phillip’s grocery. So he is arrested, put on trial and during the trial the govt. wants to produce evidence that he negotiated two other traveler’s checks from this same group and these traveler check were numbered sequentially. They were negotiated the day before he went in to the Uni Royal and they bore his signature. They were endorsed to him and that had a hand writing expert come in and say that it was his hand writing.

The court still didn’t let this extraneous evidence in. now think about that. I mean think about what would have happened today. This is a much different standard back then. This is a just 1973. This is what maybe; 40 years ago it was very difficult to get it. They couldn’t get this in, what could they get in? Well, the standard changed! You see, back then what they, back then and I changed, let me go back there… there we go. Back then what was required was similarity of the physical elements of the offense. Basically, you had, the extraneous offense and the offense charged in the indictment physically basically had to be the same thing. And then, the extrinsic evidence had to be established by plain, clear and convincing evidence. Then, Broadway dies! The death of Broadway! We had this case come along in 1978 Beechum, and they were pretty clear in Beechum. It says,” we think that Broadway runs afoul of the Federal Rules by imposing on the government too strict the standard and by requiring too close an identity of an elements.” So this is really beginning of an end here; Beechum! And we’re gonna be talking about Beechum a lot.

Beechum was a Mailman! Orange Jell like orange like the fruit Jell Beechum! And Beechum was a mailman who liked to deliver the mail and sometimes on occasion he liked to open the mail and see what was inside. Anyway, the folks over at the post office got suspicious, so they’ve set him up in a sting and they gave him some envelopes with some silver dollars in there, I don’t know why they choose silver dollars! But, they gave him some envelopes with some silver dollars, told him to go deliver it and at the end of the day they found that the silver dollars were not delivered! So then, he arrives back at the post office only to find the Federal Agents waiting for him. They stop him, they search him and they do in fact find the silver dollars in his pocket.

In addition to the silver dollars, they find 2 credit cards, not in his name! They do a little bit of research and they find that those credit cards were actually in the mail! And they had been mailed to the recipients 10 months earlier. And so, they, the government wanted to use possession of those credit cards to show, that he intended to steal the silver dollars. That’s what he was gonna, what he saying was, “well I intended to give the silver dollar back!” so the government countered by saying, “well then why didn’t you give those 2 credit cards back, you had 10 months to do it!” government says, “the obvious question is…” or rather the Court says, “the obvious question is why would Beechum give up the silver dollar if he kept the credit cards.” In this case the government was entitled to an answer.

So that’s where the things began to change. And the government tells us, “hey! We’re changing the rule, but it’s gonna help you defendants. We’re doing you a favor! Don’t be afraid, we wanna help you.” They say, “Demanding that the government prove by excessive evidence eats physical evidence of the extrinsic offense. Well, hey that may affect increase its unfair prejudice.” What? The fact that they can put these words demanding that the government prove; each physical element may in fact increase its unfair prejudice to the accused. The fact that someone could actually put all those words in one sentence and still have allies is baffling to me. But that’s what it says. It says,” we’re doing you a favor. We’re… if we make em’ prove it too much, then it‘ll just be too persuasive, too prejudicial for you guys. So we’re gonna make it easier.” So question, the logical question is; if its gonna be overly prejudicial then why allow it in the first place?

So then, we have the ‘Beechum 2-step’. Basically, these are the 2 steps in Federal court and its very similar to the 2- steps that we’re gonna see in the state court, in a few minutes. But, the extrinsic evidence must be relevant to an issue other than character and the evidence must possess probative value that is not substantially outweighed by its undue prejudice. Now, what does that mean? It seems simple. I used to look at this rule and think; oh I know what that means, that’s easy. It makes sense to me, of course it does. Was until I really began to look at the rule very carefully and look at each and every word that… I really began to get an understanding of what this, this rule means.

Step one! Is it extrinsic or intrinsic? If it’s extrinsic then 404(B) applies and you have to go through that whole test and balancing. If its intrinsic then you skip 404(B), 404(B) doesn’t even apply and you go straight to 402 and 403 like you would with any other piece of evidence.

Step two! Is it relevant? Well of course it’s relevant. I mean, the 1940’s, they’ve been saying; extraneous offense evidence isn’t being excluded because it’s irrelevant! No they’re saying; it’s being excluded because of the harmful prejudicial effect to that it might have, the chance that it might create confusion. Sure it’s relevant, I mean Hell! The problem is that it’s probably too damn relevant. So, when we say relevant in step two; is it relevant? It’s in quotations really; is it relevant to something other than character? Is there a logical nexus to an element or to a defense? And the way to think about it is; is there a logical smoking gun? Does the extraneous evidence somehow corner the defendant and put him in checkmate, by way of logic? That’s what we mean when we say relevant.

Step three is of course ‘the balancing’. Probative value versus undue prejudice! So basically we have 4 distinct things that we have to consider when we’re looking at 404(B). We got extrinsic or intrinsic, is it part of the offense or is it not part of the offense, we’ve got relevance other than character, we have probative value and undue prejudice. Now, one of the interesting things about this is that; people often use the word relevance and probative as synonyms of each other. You know, obviously in court that’s not probative of the issue that we’re discussing here. What I really mean is that that’s not relevant to the issue. But here we got the 2 words; 2 distinct different things. As I said earlier; relevance is like a logical trap, a logical smoking gun. Probative value is something completely different here. So, when you hear these two things understand, that its event though it’s tempting to think that relevance and probative value are the same thing they are not. And I’ll explain that in just a few minutes. Let’s see; extrinsic or intrinsic. That’s the first thing we need to know. If its extrinsic 404(B) applies, if it’s intrinsic, it doesn’t apply. What makes it extrinsic or intrinsic; if its inextricably intertwined part of a single criminal episode, if it’s a necessary preliminary to the crime charged, or if it’s necessary to complete the story, than that would be considered intrinsic evidence and 404(B) would not apply.

Now one of the interesting things is; whether something that’s extrinsic or intrinsic isn’t inherent in the evidence…

Francisco Hernandez

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