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Spreigl Evidence: Still Searching for a Principled Rule Ted Sampsell-Jones Mitchell Hamline School of Law, [email protected]

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Spreigl Evidence: Still Searching for a Principled Rule Ted Sampsell-Jones Mitchell Hamline School of Law, Ted.Sampselljones@Mitchellhamline.Edu Mitchell Hamline School of Law Mitchell Hamline Open Access Faculty Scholarship 2009 Spreigl Evidence: Still Searching for a Principled Rule Ted Sampsell-Jones Mitchell Hamline School of Law, [email protected] Publication Information 35 William Mitchell Law Review 1372 (2009) Repository Citation Sampsell-Jones, Ted, "Spreigl Evidence: Still Searching for a Principled Rule" (2009). Faculty Scholarship. Paper 23. http://open.mitchellhamline.edu/facsch/23 This Article is brought to you for free and open access by Mitchell Hamline Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. Spreigl Evidence: Still Searching for a Principled Rule Abstract This article first examines how Minnesota’s character evidence doctrine developed, with a particular focus on the historical confusion regarding the propriety of the propensity inference. It then examines current case law and argues that Minnesota’s current Spreigl doctrine routinely allows propensity evidence. It finally proposes a choice between abandoning the current Spreigl doctrine and repealing the character rule itself. The uthora takes no position on which alternative should be chosen, but either is better than the status quo. The current doctrine in Minnesota is a Potemkin village. Keywords Evidence law, criminal procedure, character evidence, Minnesota law, criminal law, propensity evidence Disciplines Evidence This article is available at Mitchell Hamline Open Access: http://open.mitchellhamline.edu/facsch/23 SPREIGL EVIDENCE: STILL SEARCHING FOR A PRINCIPLED RULE † Ted Sampsell-Jones I. THE PAST: THE DEVELOPMENT OF THE SPREIGL DOCTRINE IN MINNESOTA ..................................................................... 1372 A. Earliest Minnesota Cases – A Blunt, Categorical Rule....... 1374 B. Development of Limitations and Exceptions ...................... 1377 C. Early Twentieth-Century Endorsements of the Propensity Inference ......................................................................... 1379 D. The Brief Influence of Julius Stone in Minnesota .............. 1381 E. Spreigl and the Shift to Procedure ..................................... 1383 F. The Impact of Rule 404 ................................................... 1385 II. THE PRESENT: CURRENT DOCTRINE AND THE ADMISSIBILITY OF PROPENSITY EVIDENCE ............................ 1387 A. Some Foundational Issues ................................................ 1388 B. Unlinked Plans and the General Similarity Test ............... 1390 1. Problems with the “Unlinked Plan” Doctrine .............. 1391 2. Wermerskirchen, Wigmore, and Wright ....................... 1394 C. From Unlinked Plans to Other “Exceptions” ..................... 1396 1. Intent and Absence of Mistake or Accident .................. 1397 2. Knowledge ................................................................. 1399 3. Identity ..................................................................... 1400 4. Summary .................................................................. 1402 D. More Procedural Protections ............................................. 1402 III. THE FUTURE: A CANDID POLICY DEBATE ............................ 1404 Crimes are typically defined in terms of discrete instances of conduct. Criminal trials are therefore limited in scope. Juries are charged not with determining whether a defendant is generally immoral or dangerous, but rather whether he committed a particular criminal act. In short, we try a defendant “for what he did, not for who he is.”1 The character evidence rule reflects that † Assistant Professor of Law, William Mitchell College of Law. 1. United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977); accord United States v. Linares, 367 F.3d 941, 945 (D.C. Cir. 2004); Hart v. Gomez, 174 F.3d 1368 2009] SPREIGL EVIDENCE 1369 focus. The rule, developed at common law and codified into Rule 404, states that evidence of a defendant’s acts of uncharged misconduct is inadmissible to show his bad character.2 But the character evidence rule does not categorically ban evidence of other misconduct. Rule 404(b) allows evidence of uncharged misconduct to be admitted for “other purposes”—i.e., non-character purposes—such as motive, intent, plan, and identity.3 In Minnesota, evidence offered for such a purpose is known as Spreigl evidence after the eponymous 1965 Minnesota Supreme Court decision.4 (In most jurisdictions, it is known simply as 404(b) evidence.) Applying Rule 404(b) is often difficult because the line between permissible non-character uses and impermissible character uses of other misconduct evidence is often subtle. Evidence law commentators have often criticized courts for failing to draw the line with enough care.5 Wigmore himself thought it “hopeless to attempt to reconcile the precedents under various heads.”6 Others have been more ambitious. Just this year, as part of the New Wigmore treatise, David Leonard published an entire volume devoted solely to the 404(b) problem of drawing the line between permissible and impermissible uses of uncharged misconduct evidence.7 Edward Imwinkelried previously published a two-volume treatise devoted mostly to the same question.8 The 1067, 1073 n.10 (9th Cir. 1999); United States v. Vance, 871 F.2d 572, 575 (6th Cir. 1989); State v. Prioleau, 664 A.2d 743, 771 (Conn. 1995); State v. Sullivan, 679 N.W.2d 19, 23 (Iowa 2004); State v. Yager, 461 N.W.2d 741, 752 (Neb. 1990). 2. FED. R. EVID. 404. 3. Id. at 404(b). 4. State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). 5. 1 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 4:28 (3d ed. 2008) (“Perhaps because the issue so inundates courts hearing criminal appeals, published opinions often give it but passing mention, and it is lamentably common to see recitations of laundry lists of permissive uses, with little analysis or attention to the particulars.”); 2 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 404.20[3] (2nd ed. 1997) (“[C]ourts on occasion have admitted other-acts evidence almost automatically, without any real analysis, if they find it fits within one of the categories specified in Rule 404(b).”); 22 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE & PROCEDURE – EVIDENCE § 5239 (“Yet despite the recurrence of the issues, the [appellate] opinions are often poorly reasoned and provide little guidance to trial judges.”) (footnote omitted). 6. 2 WIGMORE ON EVIDENCE § 302, at 246 (Chadborne rev. ed. 1979). 7. DAVID P. LEONARD, THE NEW WIGMORE: EVIDENCE OF OTHER MISCONDUCT AND SIMILAR EVENTS (2009) [hereinafter NEW WIGMORE]. 8. EDWARD J. IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE (2006). 1370 WILLIAM MITCHELL LAW REVIEW [Vol. 35:4 mass of those accomplished works demonstrates both the importance and the difficulty of the legal problem. Without question, there is room for disagreement about particular applications of Rule 404(b). In cases around the hazy line between permissible and impermissible uses, reasonable jurists can disagree. But the case law in Minnesota and elsewhere suggests a disagreement not just about particular applications but also about the underlying principle itself—about what counts as a permissible use, about the propriety of the propensity inference itself. The traditional view of Rule 404(b) is that it bars propensity reasoning but allows the use of uncharged misconduct for non- propensity purposes. Thus, when evidence of uncharged misconduct is offered for one of the other 404(b) purposes, its relevance must not depend on propensity. In other words, when a prosecutor offers evidence of a defendant’s other crimes, it is not enough for her to show that the evidence demonstrates his motive, intent, identity, or plan—rather, she must show that the evidence demonstrates his motive, intent, identity or plan through some chain of inferences that does not include the propensity inference. That traditional view is uniformly endorsed by evidence law treatises.9 It is also widely recognized by the casebooks used in law school evidence classes.10 The case law, however, is far less clear. Many courts recognize (and at least attempt to apply) the traditional view.11 Others courts 9. 1 IMWINKELRIED, supra note 8, § 2.19 (“[T]he act must have independent, legitimate, or special relevance on another [non-propensity] theory.”) (footnotes omitted); MUELLER & KIRKPATRICK, supra note 5, § 4:28 (“[S]uch proof offered is not saved from the principle of exclusion by the mere fact that it supports a specific inference to a point like intent if the necessary logical steps include an inference of general character or propensity, or if it seems likely that the proof will be used to support such an inference.”); 1 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF EVIDENCE MANUAL § 404.02[9] (8th ed. 2002); WRIGHT & GRAHAM, supra note 5, § 5239 (“[T]he rule admits evidence of other crimes whenever it is relevant without using the inference of character anywhere in the chain of inference.”). But see Andrew J. Morris, Federal Rule of Evidence 404(b): The Fictitious Ban on Character Reasoning from Other Crime Evidence, 17 REV. LITIG. 181 (1998) (arguing that the purported propensity ban cannot be squared with the case law). 10. See, e.g., GEORGE FISHER, EVIDENCE 147–50 (2d ed. 2008); ERIC D. GREEN ET AL., PROBLEMS, CASES, AND MATERIALS ON EVIDENCE 181–82 (3d ed. 2000); RICHARD O. LEMPERT ET
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