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State v. Hendricks11/16/2001
s that the prior bad act evidence was relevant to show that the victim felt intimidated and threatened by defendant's action. We explicitly decided not to reach or ground the decision in Sanders on that rationale. See 168 Vt. at 62, 716 A.2d at 13. The second is that the evidence was admissible because the victim in Sanders recanted her statement describing the domestic assault for which defendant was charged. In fact, the Sanders opinion indicates that the victim recanted only her statements about the prior abuse. Id. at 61, 716 A.2d at 12. Although we discussed the recantation evidence as supporting the context rationale, it would not make sense to read Sanders as allowing evidence of prior bad acts only if the victim recants her statement that the prior bad acts occurred.
I believe that Sanders is a narrow opinion, as I discuss below. For three reasons, I would not overrule it.
First, the evidence here and in Sanders is "character" evidence only in the broadest sense of the word. It shows only that defendant has a violent relationship with this victim. See generally 22 Wright & Graham, Federal Practice & Procedure: Evidence § 5233 (1978 & Supp. 2001) (discussing alternative definitions of character). It is not intended to show that defendant is violent generally or that he is violent in relations with women generally. Thus, we noted in Sanders that the "purpose of establishing defendant's history of abusing the victim is not to show his general character for such abuse, but to provide the jury with an understanding of defendant's actions on the date in question." 168 Vt. at 62, 716 A.2d at 13.
I note there is a tendency here to confuse propensity evidence with character evidence. We could say that a bank robber has a propensity to rob banks with lots of money, rather than a broke savings and loan, but we would not call that a character trait. Rule 404(a) restricts character evidence and not propensity evidence. Rule 404(b) does prohibit propensity evidence but only in instances where the evidence shows a character trait. See V.R.E. 404(b) (evidence of other wrongs is inadmissible to "prove the character of a person in order to show that he acted in conformity therewith"). If our evidence rules prohibited all propensity evidence, some of the most important and probative evidence in many criminal trials would be excluded.
Second, as the concurring opinion points out through its citation to a number of law review articles, acts of domestic violence rarely occur in isolation, and Sanders is specifically limited to domestic violence cases. More important, jurors know this dynamic. They understand that after fourteen years together, a couple does not get into an extremely violent episode in which the husband is banging the wife's head against the wall solely because of a dispute over her screening his calls and with no history of such actions. In the jurors' experience, the event they are hearing about is highly unlikely without a context. If we exclude the context evidence, we invite the jurors to speculate over the real cause of the dispute, and they may speculate that she did something to "deserve" his retaliation under the circumstances or that she exaggerated the nature and severity of his violence. As Sanders points out, the lack of context is a particular problem in the all-too-frequent situation where she recants her claim that he battered her in the instance before the court. 168 Vt. at 63, 716 A.2d at 13.
I do not believe we face the same circumstances for most other crimes. I doubt there is a serious risk that jurors will speculate that a bank robbery did not occur, because they haven't heard about others. Even with a well-known DUI reci
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