South Carolina Criminal Defense Blog

South Carolina's Rule 404(b)

The general rule, in South Carolina, rule of evidence 404(b), is that prior bad acts are never admissible as evidence to prove a defendant's propensity to commit the crime he or she is charged with. The exception, however, is that prior bad acts may be "admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent."

Another underlying question bearing on the admissibility of any evidence is whether its probative value is outweighed by its prejudicial effect (Rule 403). Even if a piece of evidence is useful to prove some fact or other, it must be excluded if it would tend to cause the jury to convict based on something other than the facts of the case in front of them. For example, if a person is charged with armed robbery, the prosecutor should not be able to tell the jury that they have committed another armed robbery in the past - knowledge of this fact would make it more likely that the jury would convict the person, and yet has nothing to do with the facts of the case at hand.

The "common scheme or plan" exception, under Rule 404(b) and State v. Lyle, may possibly be the most abused, and confused, rule of evidence in South Carolina. Numerous appellate opinions over the years have contradicted one another and confused the issue, making it possible for the exception to swallow the rule, with judges allowing clearly prejudicial facts into evidence as a "common scheme or plan," despite no relation or connection between the past event and the current charges.

State v. Wallace

State v. Wallace, argued by C. Rauch Wise of Greenwood, S.C. and decided by the South Carolina Court of Appeals in 2005, was the first well reasoned opinion that analyzed State v. Lyle and its underlying facts and followed its reasoning. The comments to S.C. Rule of Evidence 404(b) note that S.C.'s rule is different from the federal rule in that the S.C. rule limits the admission of evidence to those purposes enumerated in State v. Lyle:

First, unlike the federal rule which does not limit the purposes for which evidence of other crimes may be admitted, the South Carolina rule limits the use of evidence of other crimes, wrongs, or acts to those enumerated in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).

Evidence of prior bad acts is inadmissible to prove the specific crime charged unless the evidence 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 proof of the other; or (5) identity of the person charged with the present crime. Lyle, 125 S.C. at 416, 118 S.E. at 807; Rule 404(b), SCRE (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”).

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."

In Lyle, the Defendant was charged with forgery, and during the trial the state introduced evidence that the Defendant had forged other checks on that same day as well as on prior occasions. The S.C. Supreme Court held that the forgeries committed on the same day were admissible to rebut the Defendant's alibi defense. However, the forgeries that were committed on other dates in other locations, even though all were committed in exactly the same way, were not admissible, because there was no connection between the offenses making them a "continuous transaction."

In Wallace, the defendant was on trial accused of sexually molesting his stepdaughter, and the trial court allowed the state to present testimony that the defendant had also molested the victim's sister on prior occasions. The trial court ruled that the testimony was admissible under Lyle as a common scheme or plan and that the probative value of the testimony outweighed its prejudicial effect, and limited the sister's testimony to include only acts which were similar to those committed on the victim.

The Court of Appeals reversed, holding that, per Lyle, it is not sufficient that a prior crime be similar to the one at hand, but a connection must be established between the two. The Court goes on to analyze two New York cases which also held that a connection must be established, People v. Molineux, 61 N.E. 286 (N.Y. 1901) and People v. Romano, 82 N.Y.S. 749 (N.Y. App. Div. 1903), that were also relied on by the court in Lyle.

If the only thing that is required to admit prior bad acts is sufficient similarity between the two crimes, then the probative v. prejudicial analysis is turned on its head. Anytime a defendant has committed a similar offense in the past, it can be admitted to prove a common scheme or plan, intent, motive, or absence of mistake under 404(b). And yet, the more similar a prior bad act is to the conduct that is in front of the jury, the more prejudicial it is - the more likely it is that the jury will convict based on, "well, if he did it once he would do it again."

The S.C. Supreme Court has granted cert in Wallace.

State v. Gaines

Monday, in State v. Gaines, the South Carolina Supreme Court decided another prior bad acts case, admitting the evidence of a prior act under State v. Lyle.

Gaines was charged with criminal solicitation of a minor, as a result of conversations with a cop pretending to be a 13 year old girl in an AOL chatroom. At Gaines' trial, the judge allowed the state to introduce evidence of a prior incident where Gaines chatted with a Pennsylvania cop posing as a 12 year old girl (Gaines was not charged in connection with the earlier incident).

Evidence of other crimes, wrongs, or acts is generally not admissible to prove the defendant’s guilt for the crime charged. Such evidence is, however, admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent. Rule 404(b), SCRE; State v. Pagan, 369 S.C. 201, 631 S.E.2d 262 (2006); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). To be admissible, the bad act must logically relate to the crime with which the defendant has been charged. If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing. Id.; State v. Beck, 342 S.C. 129, 135-36, 536 S.E.2d 679, 682-83 (2000). Even if prior bad act evidence is clear and convincing and falls within an exception, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Rules 403, 404(b), SCRE; State v. Gillian, 373 S.C. 601, 646 S.E.2d 872 (2007); State v. Braxton, 343 S.C. 629, 541 S.E.2d 833 (2001) . . .

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.

The future of prior bad acts and Wallace

The S.C. Supreme Court's opinion in Gaines does not bode well for Wallace. Gaines analyzes the issue solely in terms of whether the prior act is similar to the offense at hand, and makes no mention of Lyle's requirement that the two acts be connected. If the Court wished to follow Lyle and require a connection between the two offenses, they could have done so and still affirmed - as Justice Pleicones pointed out in his concurrence, the prior act should have been admissible anyway in order to rebut the defendant's claimed entrapment defense. But they did not.

Other jurisdictions have stated exceptions that allow admission of prior offenses when the defendant is charged with sex crimes against children. Until Wallace, our appellate courts have created an unstated exception allowing the admission of prior offenses when a defendant is charged with sex crimes against children. Bad facts make for bad law. The danger in our Supreme Court making an unstated exception for sex crimes against children to the rule against propensity evidence is that the exception will bleed into every other type of trial.

I believe that Wallace should be affirmed, but if the S.C. Supreme Court is not going to recognize, in Wallace, the requirement of a connection between two offenses before it is admissible under Lyle, I hope that they will create an exception for cases involving sex crimes against children, rather than allowing this mess to potentially deprive every defendant of a fair trial.