Ketchum pushes to erase 'bad acts' evidence rule

By Steve Korris | Mar 27, 2009


CHARLESTON – Jurors in criminal trials shouldn't hear evidence of a defendant's other "bad acts," according to Justice Menis Ketchum of the West Virginia Supreme Court of Appeals.

"It is obvious that prosecutors are using 'bad acts' evidence to prejudice defendants and to divert jurors' attention from the evidence surrounding the charged crime," Ketchum wrote in a March 20 opinion.

"This abusive use of uncharged 'bad acts' evidence by prosecutors will, in the future, lead to the conviction of an innocent person," he wrote. "Of this, I am convinced."

He urged other Justices to erase a rule allowing them to excuse introduction of bad acts evidence as harmless error.

"When a trial court has abused its discretion and admitted irrelevant or prejudicial bad acts evidence, I would hold that reversal and remand for a proper trial should be automatic, no matter how much evidence is otherwise presented," he wrote.

With a diplomatic touch, Ketchum avoided disagreement with his colleagues as he tried to push them in a new direction.

He concurred with them in affirming the conviction of Gloria Willett on charges that she obtained prescription drugs and sold them from a home in Beckley.

A witness testified that he often bought drugs from her, though he could not give dates for his visits and prosecutors did not charge her with selling drugs to him.

At oral arguments in January, Ketchum said the failure of the witness to specify dates prevented Willett from raising an alibi defense.

Although Ketchum affirmed the conviction, the rule he proposed might bring a different result the next time a similar situation arises.

He wrote that bad acts evidence "is now routinely used to convince the jury that they should convict the defendant because he or she is not a nice person."

"It is undeniable that a jury will be more inclined to convict once they hear that a defendant may have engaged in other 'bad acts' –- even if the defendant was never charged or convicted for that other conduct," Ketchum wrote.

He wrote that he found 78 cases in the last 20 years where defendants disputed evidence of bad acts on appeal.

The Supreme Court of Appeals prohibits evidence of other acts as proof of character but allows it for proof of motive, opportunity, intent, preparation, plan, or knowledge.

Judges apply the rule inconsistently, Ketchum wrote, and when they abuse their discretion the Supreme Court of Appeals often declares their errors harmless.

Prosecutors rely on harmless error as a safety net to uphold convictions based on uncharged misconduct, he wrote.

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