Arizona Rule of Evidence 404(b): Limiting the Use of Propensity Evidence Against Criminal Defendants

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Jessica Berch, Lecturer, Arizona State University Sandra Day O’Connor College of Law; Member of the Arizona Advisory Committee on the Rules of Evidence

The Arizona Rules of Evidence largely mirror the Federal Rules of Evidence, and Arizona state courts often look to federal precedent in interpreting the Arizona Rules. This parallelism between the two rule sets is purposeful. In fact, on June 11, 2012, the Arizona Supreme Court established the Advisory Committee on the Rules of Evidence with an express purpose of maintaining conformity with the federal rules:

The Committee shall periodically conduct a review and analysis of the Arizona Rules of Evidence, review all proposals to amend the Arizona Rules of Evidence, compare the rules to the Federal Rules of Evidence, recommend revisions and additional rules as the Committee deems appropriate, entertain comments concerning the rules, and provide reports to this Court, as appropriate.

Arizona Supreme Court Administrative Order 2012-43, dated June 11, 2012.

The Federal Advisory Committee on the Rules of Evidence has proposed amendments to Federal Rule of Evidence 404(b), which are expected to become effective December 1, 2020. Rule 404(b) explains when other crimes, wrongs, or acts may be used to prove something in the case other than a person’s character to act that way. The rule provides the following non-exhaustive list of these other purposes: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The purpose of the federal amendments is to more carefully limit when this sort of evidence is admissible in criminal trials against the criminal defendant. The Federal Advisory Committee’s amendments to Federal Rule of Evidence 404(b) include requiring prosecutors to “articulate in the notice the non-propensity purpose for which the prosecutor intends to offer the evidence and the reasoning that supports that purpose” and to do so “in writing sufficiently ahead of trial to give the defendant a fair opportunity to meet the evidence.” The proposed amended federal rule does not impose a specific timeframe for the prosecutor’s notice.

At its September 6, 2019 meeting, the Arizona Advisory Committee unanimously approved similar—though not identical—amendments to Arizona Rule of Evidence 404(b), which the Committee will be proposing to the Arizona Supreme Court by the January 10, 2020 petition deadline; if enacted, amended Arizona Rule of Evidence 404(b) will become effective January 1, 2021 (one month after the amended federal rule).

Substantively, the proposed amendments to Arizona Rule of Evidence 404(b) largely track the proposed amendments to Federal Rule of Evidence 404(b), though the Arizona amendments also seek to align Arizona Rule of Evidence 404(b) with Arizona Rule of Evidence 404(c) (character evidence in sexual misconduct cases). While the Federal Rules of Evidence do not have a 404(c) equivalent, a similar sentiment is embodied in Federal Rules 413-415. Proposed Arizona Rule of Evidence 404(b) requires the state to “articulate in the disclosure permitted purpose for which the state intends to offer the evidence and the reasoning that supports the purpose.” Although there are some minor linguistic differences between the state and federal amendments, the purpose of both is the same and is clear: the prosecutor must identify the evidence that he or she intends to offer pursuant to the rule and must also articulate a permitted purpose—that is, a non-propensity purpose—and the basis for concluding that the evidence is relevant in light of this purpose. The federal amendments do not include a specific timeframe for this notice, but the proposed amendments to Arizona Rule of Evidence 404(b) import the same timeframe used in Rule 404(c) for the state’s notice of use of character evidence in sexual misconduct cases. Thus, proposed Arizona Rule of Evidence 404(b) requires the state to

make disclosure to the defendant as to such acts as required by Rule 15.1, Rules of Criminal Procedure, no later than 45 days prior to the final trial setting or at such later time as the court may allow for good cause. The defendant shall make disclosure as to rebuttal evidence pertaining to such acts as required by Rule 15.2, no later than 20 days after receipt of the state’s disclosure or at such other time as the court may allow for good cause.

Finally, proposed Arizona Rule of Evidence 404(b) includes some other minor edits, clarifications, and renumbering, none of which is substantive.

As a member of the Advisory Committee on the Arizona Rules of Evidence and the Chair of the Rule 404(b) subcommittee, I hope that these amendments will be adopted because they will do the following:

  • keep the Arizona rule aligned with the federal rule; because many lawyers practice in both state and federal court, it makes sense to keep these two rule sets similar so there are fewer traps for the unwary,
  • restrict the profligate use of other acts evidence, which often times is a very small tail (some rather insignificant other purpose) wagging a very large dog (a strong propensity inference), and
  • maintain conformity between Arizona Rule of Evidence 404(b) and 404(c).

The subcommittee is considering whether more widespread changes to Arizona Rule of Evidence 404(b) are necessary, including applying the more rigorous notice requirements to criminal defendants and/or in civil matters. Be on the lookout for the current petition regarding the enhanced notice requirements on the state in criminal cases, which will be filed by the January 10, 2020 deadline. Remember you have the right to make comments on these matters. See more at https://www.azcourts.gov/rules/.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.

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