While storms of national civil unrest rage onward, two Georgia lawyers have lately penned opinion columns that offer views on the justice system. Both are pertinent to current and future conceptions of reform.
Marietta attorney Lance LoRusso forcefully posited that current times continue to “test the foundations and principles that form the basis of our society,” and namely: the penumbra of protections for anyone hailed into a criminal proceeding, including police officers.
Other systemic protections are also critical and apply even more broadly and to all litigants. At the top of the list are the rules of evidence. After all, the rules of evidence are the most important rules governing the trial process. This is because evidence rules control what information a jury receives and how the jury considers it.
In a Daily Report article, by comparison, attorney author Noah Pines’ byline reads, in essence: “abolish Rule 404(b),” a key evidence rule, which, when properly applied by the defense in criminal cases, ensures key rights of the accused. Abolishing Rule 404(b) would be a radical departure from all federal and nearly all state jurisprudence, and instantly make Georgia an outlier.
While Pines is correct to point out that Rule 404(b) should be “applied evenly,” since these rules apply to civil, criminal, and domestic litigation, that responsibility rests with trial lawyers whose duty is to guide judges in rendering those decisions in court.
“Character evidence,” and proof of other previous crimes of the accused, if offered to prove the circumstances immediately surrounding the charged crimes, is generally off-limits. As an exception to this rule, the intense strictures of Rule 404(b) allow such evidence’s admissibility in certain limited circumstances. A “non-character purpose” like motive, is often a justified ground for admission.
Rule 404(b) also allows the accused, on the other hand, to introduce character evidence, or evidence of other crimes, against a prosecution’s witness. This is called “reverse 404(b).” Pines’ work characterized this as some of “the most difficult, almost impossible, evidence to admit in our legal system.” Numerous evidence scholars, and, importantly, appellate courts, however, disagree since its admissibility is typically dependent on, if especially relevant, a straightforward balancing of probative value with the danger of unfair prejudice, not the extra-parameters of Rule 404(b).
Furthermore, the danger of unfair prejudice is lowered when an accused seeks to use character evidence for an acquittal as opposed to when it is used by the prosecution to secure a conviction.
Thus, eliminating Rule 404(b), and its reverse counterpart, would be detrimental to the defense. In particular, it would be harmful to the accused in criminal cases since they would not be able to offer it against prosecution witnesses. Of course, there would be other harms.
For instance, removing Rule 404(b) would disable hate crimes prosecutions in Georgia, if the proposed Hate Crimes Act, House Bill 426, passes. HB 426 was drafted without its own evidence rules, and, thus, the main way to inform jurors about past hateful misconduct, in the absence of direct evidence, would likely be through Rule 404(b). Striking Rule 404(b) would effectively cripple HB 426.
Rule 404(b) is also widely used in civil rights cases to help prove, among other things, illegal discriminatory intent, another one of the circumstances excepting admission under the rules. Jettisoning Rule 404(b), thus, would benefit civil rights violators at the expense of their victims.
Abolishing Rule 404(b), which appears federally, would be a step backwards, not forwards, since doing so would conform to a Confederate-era Constitution, quite literally. In 2013, Georgia moved away from its anachronistic Confederate-era evidence code and adopted the Federal Rules of Evidence. Eliminating Rule 404(b) would revert Georgia to jurisprudence of those fortunately bygone times when hate crimes were condoned.
What many non-lawyers do not know is that despite the fundamental importance of evidence law, many in Georgia’s bar found it difficult to adjust. This is true even though the Federal Rules of Evidence, on which Georgia’s 2013 statutes are based, have been on the books since 1975. Again and again, Georgia’s courts have admonished lawyers essentially legislating from the table, often using outdated legal reasoning.
Who knows how many clients have suffered miscarriages of justice due to these invited errors and failings?
The cure for this deficit is not removing rules but educating lawyers. A better reform would be: the State Bar of Georgia should mandate comprehensive evidence law training annually. Interestingly enough, a 2014 Daily Report column by the same author (Pines) reflected on the need for better training on evidence law for prosecutors. He was correct then, and it resonates even more so now for the defense bar. More training is advisable, rather than striking evidence rules that have been sustained in courts around the country for decades.
Learning to apply evidence rules for the benefit of clients is a much better use of lawyer time than lobbying for their elimination. Lawyers should stop there and pass the ball to the State Bar of Georgia’s leaders to implement training to reinforce knowledge of the very rules which, as LoRusso put it, sustain the “foundations and principles that form the basis of our society.”
Bill Black is a Georgia attorney who graduated with honors from Atlanta’s John Marshall Law School where he was Editor-in-Chief of the John Marshall Law Journal.
