Res gestae, context, stories, and narrative in trials

Judge David Armstrong, dissenting from the "unreported" opinion of the court in State v. Scarpa, 2009 WL 132195 (Jan. 21, 2009), made some interesting comments about the use of the notion of "res gestae" as a ground for the admission of evidence that apart from providing "context" is not relevant or otherwise admissible. His comments indirectly raise an old question about the reach and rationale of the the opinion of the Supreme Court in United States v. Old Chief, 519 U.S. 172 (1997).

In Old Chief the Court stressed, inter alia, the importance of story telling and "rich" and "colorful" "narrative" at least in criminal trials and at least by the prosecution.

But what are the limits of the storytelling rationale?

Judge Armstrong has a view about this. He wrote:

I believe that the trial court abused its discretion when it applied the "res gestae" exception to the marijuana evidence presented in this case. The evidence was not relevant for any purpose other than to show propensity to possess drugs generally, and it was therefore inadmissible under [Evidence Rule] 404(b). ...

[snip, snip]

Here, the State argued that the marijuana evidence showed Scarpa's propensity to possess drugs. The prosecutor's use of Scarpa's marijuana possession suggested that she was a drug user generally, and that because she was a drug user, her possession of a different drug, methamphetamine, in her purse was also for her use. This is a propensity inference, which is prohibited by ER 404(b).

II. Res Gestae Exception

Professor John Henry Wigmore outlined an exception to ER 404(b) for "other criminal acts that are an inseparable part of the whole deed":

Suppose that A is charged with stealing the tools of X; the evidence shows that a box of carpenter's tools was taken and that in it were the tools of Y and Z, as well as those of X. Here we are incidentally proving the commission of two additional crimes because they are necessarily interwoven with the stealing charged and together form one deed.

IA Wigmore on Evidence § 218, at 1883 (Tillers rev.1983). Professor Wigmore explained that the uncharged crimes against Y and Z "are not offered as affecting A's character, nor do they affect his character, because all were done, if at all, as parts of a whole and if we believe or disbelieve his doing of one part, we believe or disbelieve his doing of all." IA Wigmore on Evidence § 218, at 1883. It is therefore logically impossible for the defendant to suffer the harm that ER 404(b) seeks to prevent: that the jury "condemn him now, though innocent of the act charged, because [it is] prejudiced by his former crimes." IA Wigmore on Evidence § 218, at 1883.

Washington courts have since expanded Professor Wigmore's concept, calling it the "res gestae" exception, to include evidence of any other acts that tend to "complete the story of the crime." See, e.g., State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995) (quotations omitted). I agree with critics who have commented that this formulation is obscure, indefinite, and subject to abuse. See, e.g., State v. Fetelee, 117 Haw. 53, 175 P.3d 709, 725-28 (Haw.2008); Jerome A. Hoffman, Res Gestae's Children, 47 Ala. L.Rev. 73, 74- 75 (1995) (describing the words "res gestae" as "more impressive for their obscurity with every passing generation" and "perhaps the most famous--and certainly the hardiest--judicial nonreason of all time"). As the District of Columbia Circuit has noted, all relevant evidence offered by the prosecution completes the story, whether admissible or not; thus, the fact that omitting some evidence would render a story slightly less complete cannot justify circumventing ER 404(b) altogether. United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000). Professor Wigmore himself stated that "[i]t is not too much to say that [the term "res gestae"] is nowadays most frequently used merely as a cover for loose ideas and ignorance of principles." IA Wigmore on Evidence § 218, at 1888; see also Bowie, 232 F.3d at 928 & n. 2 (referring to "res gestae" as a "Latinism" that "tends merely to obscure the analysis underlying the admissibility of the evidence") (quoting United States v. Krezdorn, 639 F.2d 1327, 1332 (5th Cir.1981)).

Moreover, because notions of "res gestae" or "context" have no real conceptual limits, the exception threatens to swallow [Evidence Rule] 404(b)'s general rule. Fetelee, 175 P.3d at 728 (quoting People v. Agado, 964 P.2d 565, 570 (Colo.Ct.App.1998) (Briggs, J ., concurring)); see Bowie, 232 F.3d at 928-29. The fact that evidence may provide "context" to a story has never been an exception to the requirement that all evidence be relevant. ER 402. And here, the evidence of Scarpa's marijuana possession was relevant only to show her propensity to commit the crime of methamphetamine possession. To use such evidence under the guise of "completing the story" is inconsistent with Wigmore's original formulation of the res gestae exception and prohibited by ER 404(b). I would therefore hold that the trial court abused its discretion in admitting it.

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