South Carolina criminal defense lawyer Bobby Frederick has posted about the South Carolina Supreme Court’s consideration of State v. Wallace, addressing the use of prior bad act evidence in a case involving the sexual molestation of a child.  The prosecution introduced at trial evidence that the defendant had previously molested another child as an uncharged prior bad act, under South Carolina Rule of Evidence 404b, which is an offshoot of the 1901 New York decision in People v. Molineux, possibly one of the worst understood and most abused decisions ever.

This quote from the Molineux decision has wound its way across a multitude of jurisdictions:

Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.

Taken alone, it has caused enormous problems.  The holding of Molineux was not the establishment of exceptions to permit certain types of evidence that, as it also happens, shows the defendant’s propensity to commit the crime.  The subsequent explanation in Molineux makes clear that the circumstances where these exceptions would apply are meant to be highly circumscribed, and even then subject to final balancing test of probative value against prejudice.  Molineux was a preclusive decision, meant to weed out all but the most limited use of prior bad act evidence.  Instead, it’s become the roadmap for admitting propensity evidence under another name.

After argument by appellate attorney C. Rauch Wise, the intermediate appellate court reversed, and held that it was insufficient that the two offenses by merely similar, but that they must be “legally connected” before the prior bad act would be admissible under the “common scheme or plan” prong of Molineux.

In the interim, the South Carolina decided another “common scheme or plan” case, State v. Gaines, where it held:

Where there is a close degree of similarity between the crime charged and the prior bad act, both this Court and the Court of Appeals have held prior bad acts are admissible to demonstrate a common scheme or plan.

As Bobby points out, this doesn’t bode well for the review of Wallace.  So what’s missing here?

The Molineux decision, which includes in its laundry list of potential exceptions, common scheme or plan goes on to explain, in detail, what it meant and why it’s there.  One would think that nobody has read the full decision since 1901 based upon how this prong has been utilized since.  And, as is so often the case, the phrase has taken on a meaning of its own that has completely divorced it from its original purpose.

The inclusion of “common scheme or plan” in Molineux was directed toward one extremely specific, extremely rare, circumstance:  where the intended crime involved multiple acts committed in seriatim to accomplish an ultimate goal. 

To bring a case within this exception to the general rule which excludes proof of extraneous crimes, there must be evidence of system between the offense on trial and the one sought to be introduced. They must be connected as parts of a general and composite plan or scheme, or they must be so related to each other as to show a common motive or intent running through both. Underhill in his work on Criminal Evidence (Sec. 88) thus states this exception to the general rule: “No separate and isolated crime can be given in evidence. In order that one crime may be relevant as evidence of another, the two must be connected as parts of a general and composite scheme or plan.

In short, they didn’t use the words “common scheme or plan” for no particular reason.  It says exactly what was meant.  And since then, it has been used to mean something entirely different.

The abuse of the common scheme or plan prong has caused it to be turned into a secondary means of negating a defense issue of intent or identity, the other exceptions of motive and lack of accident or mistake being just variations on the intent theme, more attuned to legal doctrine as it existed in 1901 than today.  The concept that common scheme means a subpart of a whole crime has long since been lost, and there are literally thousands of decisions across the country that hold common scheme and plan to mean some greater or lesser degree of similarity of crimes, with some greater or lesser degree of connection between them. 

The Wallace reversal followed another South Carolina decision from 1923, People v. Lyle.

Under Lyle, a common scheme or plan is one “embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other.”

While this is obviously an offshoot of Molineux, it falls under the old adage of “remembering the rubric while forgetting the rationale.”  Taken without Molineux‘s underlying rationale for including common scheme or plan in the list of exceptions, it leaves the amorphous test of “so related” as the basis for admissibility, whatever that means.  From here, it’s a mere hop, skip and jump to mere similarity of crimes, which harkens back to the intent and identity elements exceptions.

Clearly, Molineux never meant to suggest that crimes that were “so related,” regardless of what that relationship might be, fell within the “common scheme or plan” exception.  More to the point, whether one uses the phraseology of “so related” or “legally related,” it has no clear meaning and is open to interpretation that bears no connection to its original purpose for inclusion.

When it comes to the future of “common scheme or plan” of Wallace before the South Carolina Supreme Court, there are two potential paths.  The first is to pursue the original doctrinal purpose of this exception from its root in Molineux, showing how it’s been lost over the years to misinterpretation and misapplication.  This approach, while intellectually pure, has a few problems.  First, the rule applied in South Carolina is statutory, and thus breaks from direct reliance on Molineux and can be interpreted without regard to the original Molineux purpose. 

Second, because there are literally thousand of decisions eschewing Molineux’s original rationale in favor of this amorphous connection theory, this becomes a situation of one against the mob.  Why should a single ancient decision be right and thousands of decisions thereafter be wrong?

Bobby argues in the comments,

To be admissible as a common scheme or plan, there should be a connection between the two acts (Molineux), that would make them a continuous transaction (Lyle in S.C.).

While I wouldn’t describe them as merely a “connection” that would make them “a continuous transaction,” and I do not read Lyle to have the conceptual clarity that was needed because of its use of such vague language, his basic thrust is right on target.  But will the South Carolina Supreme Court be willing to make such a marked shift in its decision to return to the real purpose of the “common scheme or plan” exception after all the water under the bridge, and with such a weak precedent as Lyle to rely on?

Or, should Rauch Wise pursue a course of using the current state of the law, as enunciated in Gaines, to link common scheme or plan as the mechanism to negate the issue of lack of intent, and argue that introducing a similar uncharged prior bad act is merely a backdoor for propensity unless there is something so unique about it that it shows that it’s “so connected,” as the phrase has been misused, to make it relevant to the instant charge?

In a pure doctrinal argument, I would vote with Bobby, as I find it terribly disturbing when courts forget why exceptions were born and use them mindlessly because of historic misapplication of precedent.  However, the less intellectually honest approach is probably more pragmatic, and has a greater chance of success because it doesn’t require the South Carolina Supreme Court to reverse itself as well as all those cases that misused the exception over the years.

It’s a tough call, but this is a very important issue.  Prior bad act evidence is a killer at trial, and no matter what argument is used, its real purpose is invariably to show the defendant’s propensity to commit the crime, the very purpose that is never permitted. It is such potent evidence of guilty to a jury, even though it is so fundamentally wrong.  Funny how that happens.