3 Step Process for Admitting Evidence of Prior Bad Acts Under URE 404(b)

Utah v. Brown, 2010 UT App. 48, (Utah Court of Appeals, February 25, 2010).

Brown was convicted of Retail Theft.  During the trial, the state offered evidence of prior theft under URE 404(b) to show Brown’s intent, plan, and lack or mistake or accident.  Brown appealed and claimed the trial court should not have admitted the prior theft.  For prior bad act evidence to be admissible there are three requirements.  First, the evidence must be for a non-character purpose (see list in URE 404(b)).  Second, if the purpose is proper, it must also be relevant under URE 402.  Third, the evidence probative value must outweigh the risk of unfair prejudice to the defendant under URE 403.  To make this final determination the trial court must consider several factors including the strength of the evidence as to the commission of the other crime, similarities between the crimes, the interval of time that has elapsed between crimes, the need for the evidence, efficacy of alternative proof, and whether evidence would rouse the jury to overmastering hostility.

Based on this analysis, the Court affirmed the trial court finding that the evidence demonstrated Brown’s intent, plan, or absence of accident or mistake; the Court made this finding because of the remarkable factual similarity between the charged offense and the prior theft.

Full Decision available at http://www.utcourts.gov/opinions/mds/brown022510.pdf