Review of the record reveals that two contradictory standards
are being applied to determine when evidence of a defendant's prior bad acts
should be excluded or admitted by the trial judge.

by James A. Morrow, Peter N. Thompson, and Alfred C. Holden

Minnesota state court trial judges would agree that the most difficult and important decision in a criminal trial is whether to exclude or admit Spreigl / Rule 404(b) evidence against a defendant. Evidence that the accused has misbehaved in similar ways in the past is powerful evidence and has great potential to unfairly prejudice the jury. Because of the importance of this issue, Spreigl matters are frequently litigated on appeal. Through numerous decisions, the Minnesota Supreme Court has developed an elaborate process to be used by trial judges in addressing evidence of other crimes, wrongs, or acts.1 For example, the state must provide pretrial notice and indicate what issue the evidence is being offered to prove.2 The trial judge may require a full evidentiary hearing on the issue and, in order to determine whether the state's case is weak, will usually put off ruling until after the state has presented its case-in-chief. Before admitting the evidence, the trial judge must conclude by clear and convincing evidence that the defendant participated in the "other crimes."3 Further, the evidence should be admitted only if it is relevant and necessary to the state's case.4

For the trial judge, however, the final step in determining admissibility involves a careful balancing of the probative value of prior crimes against the potential for unfair prejudice. It is at this key point in the process where the Minnesota Supreme Court has not provided guidance as to the appropriate legal standard. The Minnesota Supreme Court appropriately defers to the trial judge's discretion, but leaves trial judges to determine for themselves the correct balancing test.

There are at least two very different balancing tests the current Court is using. The current Supreme Court, however, did not create this problem; it started much earlier.5 For instance, in 1981 the Minnesota Supreme Court stated the following as the standard in State v. Morrison:

The key tests in determining admissibility of Spreigl evidence are whether the evidence is clear and convincing that defendant participated in the Spreigl offense, whether the Spreigl evidence is relevant and material to the state's case, and whether the potential of the Spreigl evidence for unfair prejudice substantially outweighs its probative value.6

Morrison cited the 1980 Minnesota Supreme Court case of State v. Bolts7 as authority for this standard. Bolts, however, did not follow the balancing test cited in Morrison. In fact, Bolts used an altogether different test stating that the evidence is admissible where "the probative character of the evidence outweigh[s] its potential for unfair prejudice."8

Historically, the legal standard stemming from the Spreigl decision instructs the trial judge to exclude the evidence in the close case "[w]here it is not clear to the court whether or not the evidence is admissible as an exception to the general exclusionary rule ... ."9 The Spreigl standard, which is the balancing test most often used by the courts is the "outweighs test." This standard requires that the trial judge exclude the evidence unless the probative value of the evidence outweighs the potential for unfair prejudice.10 For example, evidence will be excluded when the danger of unfair prejudice equals or exceeds the probative value even slightly.

Periodically, however, the Supreme Court has endorsed a completely different standard -- the standard favoring admissibility found in Minn. R. Evid. 403.11 According to the Rule 403 balancing test, evidence should be excluded only if the potential for unfair prejudice substantially outweighs the probative value. In other words, under Rule 403 the "other crimes" evidence can be admitted when the danger of unfair prejudice outweighs the probative value. The "outweighs" Spreigl standard favors exclusion in the close case while Rule 403 is designed to encourage trial judges to admit the evidence in the close case. Which is it?

Clearly we have two different standards being applied by the same court to make the same decision. For example, in 1999 in the case of State v. Lynch, the Minnesota Supreme Court used the Rule 403 balancing test: "[e]ven if evidence is relevant ... it 'may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.'"12 Later in the same year, the Court used the "outweighs" test in State v. Bauer: "the trial court must determine that there is clear and convincing evidence that the defendant committed the prior bad act and that the probative value of the evidence outweighs any potential for unfair prejudice."13 The Supreme Court has not provided clear guidance for the Minnesota Court of Appeals.14 Recent proof of this is the 2003 case State v. Benitez, where the Minnesota Court of Appeals implicitly used both standards in its opinion. First, the court quoted a 1992 Minnesota Supreme Court case, State v. Berry, stating:

Spreigl evidence shall not be admitted in a criminal prosecution unless the trial court finds: (1) clear and convincing evidence that the defendant participated in the Spreigl incident; (2) the Spreigl evidence is relevant and material to the state's case; and (3) the probative value of the Spreigl evidence outweighs its potential for unfair prejudice.15

Later, the court quoted the 1998 Minnesota Supreme Court case, State v. Kennedy:

Even if Spreigl evidence is relevant, it may still be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice."16

The full impact of the use of "other crimes" evidence is difficult to quantify. However, attorneys, judges, and legal commentators have no doubt that the impact is very significant. Unfair prejudice refers to the "unfair advantage that results from the capacity of the evidence to persuade by illegitimate means."17 In theory, "other crimes" evidence is offered to prove a specific issue at trial such as plan or identity. The concern, of course, is that this evidence of other bad acts will lead the jurors to jump to the forbidden, but powerful, inference of propensity. For example, jurors may conclude that because the defendant committed bad acts in the past, the defendant is a bad person and must have committed the charged offense. That is, jurors may become so upset with a person who has done bad acts in the past that they vote to convict even when they have reasonable doubts about the act charged. In effect, a juror may infer that the earlier bad acts of a defendant reflect bad character even if the evidence was not offered as character evidence. Based on the belief that the defendant possesses bad character, a juror may believe that the odds are greater that the defendant is guilty of the crime now being tried -- an inference that is improper under the rules of evidence.18

The distinction between forbidden character evidence and permissible "other crimes" evidence under Rule 404(b) is certainly slippery. Consequently, the potential for unfair prejudice in Spreigl evidence is almost always strong. In the end, we can clearly see how "[t]he natural and inevitable tendency of the tribunal -- whether judge or jury -- is to give excessive weight to the ... record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge."19

The Supreme Court has been made aware of its use of conflicting standards in a very formal way. In 1990, the Supreme Court Advisory Committee on Rules of Evidence recommended that Minn. R. Evid. 404(b) be amended to add language making it explicit that the trial judge should exclude the evidence unless the probative value outweighs the unfair prejudice -- the "outweighs" test. The advisory committee noted the discrepancy in Supreme Court cases. According to the advisory committee, the proposed rule would bring the text of Rule 404(b) into conformity with the bulk of Minnesota case law dating back at least to the 1965 Spreigl case.20 Without any comment, the Supreme Court rejected the proposed amendment, prompting a belief that the Court was going to adopt the Rule 403 approach. Subsequent decisions, however, use both standards interchangeably as if they expressed the same test.

Perhaps from the appellate perspective it may make little difference which standard the trial judge used. The problem is masked and insulated from scrutiny by the appellate courts because of the broad discretion extended to the decision-makers at the trial court level. As a result, trial judges can use either standard and not be reversed on appeal. But, Supreme Court opinions do not simply decide cases. Among the reasons that appellate judges write opinions is to "demonstrate [their] recognition that under a government of laws, ordinary people have a right to expect that the law will apply to all citizens alike."21 Through its opinions, the Supreme Court reconciles conflicting approaches to legal issues establishing the proper standards to be used in Minnesota courtrooms. Defendants and their counsel can then possess a degree of certainty as to potential outcomes in a given case, and will feel that they will be given equal treatment under the law. In this manner, public confidence in the criminal justice system is fostered.

A survey of the Minnesota case law dealing with the admission of Spreigl evidence indicates that all of these cases remain good law. Nevertheless, whether a case announces a "substantially outweighs" standard, or uses merely an "outweighs" standard, previous cases choosing one standard over the other are never distinguished, criticized, or reconciled. Consequently, a trial judge can choose to admit in the close case or choose to exclude in the close case without sufficient guidance from the Supreme Court. Because Spreigl/404(b) evidence "is nearly always relevant and nearly always prejudicial, many cases will appear to fall close to the line."22 Therefore, a clear standard for balancing probative value and the potential for unfair prejudice is important.

We believe the solution is clear. The Minnesota Supreme Court must make a choice between the two standards and put to rest the longstanding dichotomy. Because of the great potential for unfair prejudice, the bulk of the precedent, as well as the rationale expressed in the original Spreigl decision, we urge the Court to adopt the rule proposed by the advisory committee in 1990. The trial judge should exclude the evidence unless the probative value outweighs the unfair prejudice. But, if the Court prefers the more permissive approach in Rule 403, we wholeheartedly urge the Court to clearly establish this rule and require that trial judges consistently adhere to it. All trial judges should use the same benchmark. There should be only one standard for weighing the potential for unfair prejudice against probative value when it comes to "other crimes" evidence, and this standard should be clearly articulated by the Minnesota Supreme Court.

Notes
1 State v. Kennedy, 585 N.W.2d 385 (Minn. 1998.

2 See Minn. R. Crim. P. 7.02; State v. Spreigl, 139 N.W.2d 167 (Minn. 1965) (establishing notice requirement before admitting other crimes evidence). The state need not provide notice if the crimes are offered to rebut, are part of the episode giving rise to the prosecution, bear on the relationship between a defendant and victim, or their relevance does not become apparent until after the trial has started. Spreigl, 139 N.W.2d at 169.

3 See Minn. R. Evid. 404(b). But see Huddleston v. United States, 485 U.S. 681, 687-88 (1988).

4 See State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991); State v. Billstrom, 149 N.W.2d 281, 284-85 (Minn. 1967) (requiring judge to exclude evidence unless it was necessary to support the state's burden of proof). The judge should give a limiting instruction, whether requested or not, both when the evidence is offered and during the jury instructions at the end of trial. State v. Forsman, 260 N.W.2d 160, 169 (Minn. 1977).

5 Compare State v. Molin, 288 N.W.2d 232, 232-33 (Minn. 1979) (emphasis added) ("...in determining admissibility of relevant evidence the trial court should determine whether the probative value of the evidence is substantially outweighed by the potential of the evidence for unfair prejudice.") and State v. Morgan, 246 N.W.2d 165, 167 (Minn. 1976) (emphasis added) ("...the admissibility of evidence of other crimes turns on whether the probative value of such evidence outweighs the danger of prejudice to the defendant.").

6 310 N.W.2d 135, 137 (Minn. 1981) (emphasis added).

7 288 N.W.2d 718 (Minn. 1980).

8 Id. at 718 (emphasis added).

9 Spreigl, 139 N.W.2d at 172 ("Where it is not clear to the court whether or not the evidence is admissible as an exception to the general exclusionary rule, Ôthe accused is to be given the benefit of the doubt, and the evidence rejected.'").

10 See State v. Ranier, 411 N.W.2d 490, 497 (Minn. 1987); State v. Doughman, 384 N.W.2d 450, 454 (Minn. 1986); State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983); State v. Bolts, 288 N.W.2d 718, 718 (Minn. 1980).

11 See Minn. R. Evid. 403; see also State v. Harris, 560 N.W.2d 672, 678 (Minn. 1997); State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996); State v. Morrison, 310 N.W.2d 135, 137 (Minn. 1981).

12 590 N.W.2d 75, 81 (Minn. 1999) (emphasis added) (quoting Minn. R. Evid. 403).

13 598 N.W.2d 352, 364 (Minn. 1999) (emphasis added).

14 See e.g. State v. DeRosier, 2002 wl 15681 at *1 (Minn. App. 01/08/02) (stating a third balancing test -- that Spreigl evidence may not be admitted unless "the probative value of the other act evidence is not outweighed by its potential for unfair prejudice," but citing Minn. R. Evid. 403).

15 State v. Benitez, 2003 wl 895072 at *3 (Minn. App. 03/04/03) (citing State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (emphasis added)).

16 Id. at *4 (quoting State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (emphasis added)).

17 State v. Buggs, 581 N.W.2d 329, 336 (Minn. 1998).

18 Minn. R. Evid. 404(a).

19 John Henry Wigmore, Evidence in Trials at Common Law ¤55.

20 See 11 Peter N. Thompson, Minnesota Practice, Evidence ¤404.01 (3d ed. 2001). Cf. State v. Fitchette, 92 N.W. 527, 528 (Minn. 1902) (emphasis added) ("In the practical evolution of the law which protects an accused person from collateral attacks upon his character, and forbids proof of distinct offenses the only effect of which must be to prejudice his rights, several well-defined exceptions to the general rule [that past crimes are inadmissible to prove innocence or guilt] have been recognized in decided cases.... The authorities which sustain these exceptions recognize the general rule ... and illustrate the extreme solicitude of the courts to afford protection in all cases where it can be given, as they go so far as to hold, as an admonition of duty upon the courts, that, where the exception to the general rule thus stated is not clear in any particular instance, and the trial judge does not clearly perceive that the evidence falls within its purview, the accused is to be given the benefit of the doubt, and the evidence rejected.").

21 Patricia M. Wald, "The Rhetoric of Results and the Results of Rhetoric: Judicial Writings," 62 U. Chi. L. Rev. 1371, 1372 (1995).

22 Chad M. Oldfather, "Other Bad Acts and the Failure of Precedent," 28 Wm. Mitchell L. Rev. 151, 190 (2001).

The authors offer special thanks to Rachel W. Morrison, Prof. Peter B. Knapp, Hon. Robert B. Varco, Hon. Michael J. Roith, Mark A. Metz, and Allan Witz for their help and guidance in preparing this article.

JAMES A. MORROW, Anoka County district judge, is an adjunct professor of law at Hamline University School of Law.

PETER N. THOMPSON is professor of law at Hamline University School of Law and was chair of the Supreme Court Advisory Committee on Rules of Evidence.

ALFRED C. HOLDEN is an honors graduate of William Mitchell College of Law where he served on the law review. He is currently working as a research attorney.