When can negative prior acts evidence be used against a defendant in a criminal case?

(And why you need diligent counsel to represent you)

The district attorney’s office has several advantages in any criminal case. They have immense discretion, vast resources, and the benefit of several evidentiary rules. Among those rules is Pennsylvania Rule of Evidence 404(b), which allows the limited use of “prior bad acts” evidence against defendants in criminal cases. In some cases, that rule allows the prosecutor to tell the jury about other bad things the defendant supposedly did—even if they were never charged or convicted.

When can prosecutors use prior bad acts evidence?

The rule limits the prosecutor’s ability to use prior bad act evidence. The prosecutor cannot use that evidence to show that the defendant is a bad person, predisposed to criminal actions, or committed this offense because he did the same thing in the past. Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988). But the district attorney can use the evidence to prove something else. For example, the prosecutor can use it to prove the absence of mistake or accident; a common scheme, plan, or design; a motive; intent; or the identity of the perpetrator. Commonwealth v. O’Brien, 836 A.2d 966, 969 (Pa. Super. 2003).

What acts can the prosecutor use?

While Rule 404(b) limits the uses for this type of evidence, it does not limit the type of prior events that the district attorney can put in front of the jury. It does not limit them to actions that resulted in guilty pleas, convictions, or even criminal charges. Instead, it allows the prosecutor to use “evidence of any other crime, wrong or act[.]” Pa. R.E. 404(b).

The appellate courts have set limits on the prosecutor’s ability to tell the jury about a defendant’s prior “bad acts” based on the similarity between the prior act and the at-issue one. Depending on intended use of the evidence, the prior acts have to have a factual connection to the at-issue charge. Commonwealth v. Sitler, 144 A.3d 85, 98-99 (Pa. Super. 2012). For some uses (identity and common scheme, for example) the prior acts must be “distinctive and so nearly identical as to become the signature of the same perpetrator.” Commonwealth v. Tyson, 119 A.3d 353, 359 (Pa. Super. 2015). The trial courts, however, evaluate the similarity of those acts on a case-by-case basis. Commonwealth v. Frank, 577 A.2d 609, 614 (Pa. Super. 1990).

The prosecutor can use any otherwise admissible form of evidence to tell the jury about the prior bad acts. Usually (but not always) that means the testimony of the alleged victim of the prior act. But the prosecutor could use photos, videos, or documentary evidence in the appropriate circumstance.

Why does my choice of counsel matter?

Attorneys handling criminal cases have to exercise extreme care when there is any potential for the use of prior bad acts evidence. The litigation of those issues is high-stakes, fact-intensive, and hotly contested. Anyone facing such an issue needs a diligent, detail oriented, and experienced lawyer to fight that battle.

Prosecutors, defense attorneys, and the courts all know the devastating potential of prior bad acts evidence. Former Chief Justice Thomas Saylor of the Pennsylvania Supreme Court has published several opinions emphasizing his “concern[] about the power of potentially inevitable character inferences associated with other-acts evidence[.]” Commonwealth v. Cosby, 252 A.3d 1092, 1154 (Pa. 2021) (Saylor, C.J., dissenting) (citing Commonwealth v. Hicks, 156 A.3d 1114, 1138 (Pa. 2017) (Saylor, C.J., concurring)).

If you are being investigated or have been charged with a crime, an experienced and diligent advocate is critical to the best resolution possible. Call Pyfer Reese and ask to meet with Dan Bardo, Anthony diDonato, or Chris Patterson.