Defendant Harold Donald was charged with first degree assault and attempted robbery. Donald’s defense at trial was that the other defendant, Lorenzo Leon, committed the crime alone. To support this defense, Donald sought to introduce evidence of Leon’s criminal and mental health history. The court excluded Leon’s criminal history, but allowed a limited amount of his mental health history. The trial court admitted evidence showing that Leon faked his mental illness but excluded evidence that he experienced “command hallucinations” where a voice told him to hurt or kill people.
Donald argued that ER 404(b) – which prohibits evidence of any person’s other crimes, wrongs, or acts to show that he acted consistent with his character on a particular occasion – does not violate an accused’s constitutional right to present a defense.
Division I declined to adopt a relevance/prejudice test several federal circuits have adopted. Instead, it agreed with the Ninth Circuit that because 404(b) is not limited to other crimes, wrongs, or acts of the defendant, it is not subject to a relevance/prejudice test. To invalidate the rule, one would have to show it is arbitrary, unreasonably related or disproportionate to the ends it is designed to serve.
In this case the rule did not exclude any witness with knowledge of any fact of the alleged crimes, and did not exclude any testimony from Donald. It only excluded propensity evidence that was distracting, time-consuming and likely to influence a fact finder far beyond its legitimate probative value. That does not make the rule arbitrary, unreasonably related or disproportionate to its end.