674 S.E.2d 602
I feel compelled to write separately because I believe that the use of bad acts
evidence under Rule 404(b) in criminal trials is now routinely used to convince the jury that
they should convict the defendant because he or she is not a nice person.
Rule 404(b) was originally designed to keep such fundamentally unfair
evidence of uncharged misconduct away from the jury, allowing the jury to focus on the
proper question: does the evidence show the defendant committed the crime with which he
or she is currently charged? However, since I took the bench two months ago, bad acts
evidence has been raised as an error in virtually every criminal appeal presented to our Court.
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. This abusive use
of uncharged bad acts evidence by prosecutors will, in the future, lead to the conviction
of an innocent person. Of this, I am convinced. I therefore propose a change to Rule 404(b)
in criminal cases.
Evidence of a distinct, substantive offense cannot be admitted in support of another offense.
This absolute prohibition later softened slightly, and the Court permitted such evidence to be used in rebuttal _ but only if the defendant first attempted to show he did not commit the crime because he was a person of good character. As we said in Syllabus Point 2 of State v. Miller, 75 W.Va. 591, 84 S.E. 383 (1915):
It is error to admit evidence, in such a case, tending to prove bad character or degradation on the part of the accused, over his objection and in the absence of evidence adduced by him to establish good character on his part.
See also, Syllabus Point 1, State v. Graham, 119 W.Va. 85, 191 S.E. 884 (1937) (In a criminal trial, the state cannot introduce evidence, not connected with the crime for which the accused is being tried, for the purpose of showing his bad character, until the accused has first put his own character in issue by attempting to prove a previous good character.)
The reason that West Virginia _ and, for that matter, most other jurisdictions _ opted to generally exclude evidence of other collateral bad acts was stated this way in 1961:
Evidence of the accused's past criminal history _ prior
convictions at trial, pleas of guilty, acquittals for technical
reasons, arrests, and police or private suspicions _ have
traditionally been viewed with distrust in Anglo-American law.
Probably the principal reason for limiting the use of other
crimes evidence at trial has been the fear that such evidence
will prejudice the jury against the accused. The notion of
prejudice encompasses two distinct tendencies of jurors. The
first is the tendency to convict a man of the crime charged, not
because he is guilty of that offense, but because evidence
introduced indicates that he had committed another unpunished
crime or that he is a bad man who should be incarcerated
regardless of his present guilt. A conviction for this reason
would violate the principle that a man may be punished only for
those acts with which he has been charged. The second is the
tendency to infer that because the accused committed one crime,
he committed the crime charged. In many instances this
inference rests on no greater foundation than the belief that
commission of one crime indicates a propensity to commit
others. Convictions based on this equation are disapproved
because of the limited probity of propensity evidence. Whatever
statistical data may demonstrate about the likelihood of repeated
crimes in a given group of offenders, it says little about the guilt
of an individual defendant. Recognizing both these jury
tendencies, American courts have generally excluded other
crimes evidence which proves no more than criminal
disposition or criminal character, reasoning that the
possibility of inflaming jury sentiments outweighs the limited
relevance of such evidence.
Note, 70 Yale L.J. 763-64 (April, 1961). See also, McKinney v. Rees, 993 F.2d 1378, 1380 (9th Cir. 1993) (quoting Harrison's Trial, 12 How.St.Tr. 834 (Old Bailey 1692)) (Hold, what are you doing now? Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.).
My recollection of the rare use of bad acts evidence in criminal cases is supported by Syllabus Point 11 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), where the Court said:
Subject to exceptions, it is a well-established common-
law rule that in a criminal prosecution, proof which shows or
tends to show that the accused is guilty of the commission of
other crimes and offenses at other times, even though they are
of the same nature as the one charged, is incompetent and
inadmissible for the purpose of showing the commission of the
particular crime charged, unless such other offenses are an
element of or are legally connected with the offense for which
the accused is on trial.
The Court in Thomas went on, in Syllabus Point 12, to list the five exceptional cases where other bad acts evidence could be admitted:
The exceptions permitting evidence of collateral crimes and charges to be admissible against an accused are recognized as follows: the evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial.
The Thomas Court expressed the obvious concern that prosecutors might still try a defendant for one crime by using evidence that the defendant committed other crimes, and raise the inference with the jury that because the defendant had previously committed other crimes, then the defendant was more liable to have committed the crime for which he or she is presently indicted and being tried. (See footnote 1)
But an even greater concern expressed by the Thomas Court was not with the arguable admissibility of the evidence of collateral crimes and charges under one of the recognized exceptions, but rather, whether the prosecutor prejudiced the accused by the excessive employment or 'shotgunning' of such evidence against the accused. Thomas, 157 W.Va. 640, 656, 203 S.E.2d 445, 456. The Court was concerned that prosecutors would poison a jury's attitude toward a defendant through nothing more than piling on massive and wide-ranging volumes of other bad acts evidence. The mere quantity of this evidence would also prejudice a defendant by confusing the defendant's ability to present a defense to the indictment by compelling the defendant to defend against unrelated, uncharged offenses. (See footnote 2)
The Court therefore gave the following admonition to circuit courts in criminal cases:
In the exercise of discretion to admit or exclude evidence
of collateral crimes and charges, the overriding considerations
for the trial court are to scrupulously protect the accused in his
right to a fair trial while adequately preserving the right of the
State to prove evidence which is relevant and legally connected
with the charge for which the accused is being tried.
Syllabus Point 16, Thomas, supra. (See footnote 3)
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
With a few variations, this Court adopted the most of the Federal Rules into the West Virginia Rules of Evidence in 1985. (See footnote 5) Because of the potentially decisive impact of uncharged misconduct, and its countervailing prejudicial character, defense attorneys vigorously contest the use of uncharged misconduct evidence. Consequently, Rule 404(b) disputes are the most frequently litigated evidentiary issue in appellate courts. (See footnote 6) In an unscientific search of West Virginia cases, I found at least 78 published criminal cases in the last 20 years where the admission of other bad acts under W.Va.R.E. Rule 404(b) was disputed on appeal. (See footnote 7)
In many cases, I believe that Rule 404(b) is being applied inconsistently. It
appears that prosecutors and trial courts often search for a convenient pigeonhole to admit
proof of other bad acts, then perform a perfunctory balance of the probative value against its
prejudicial effect before admitting the other bad acts evidence. (See footnote 8) See Syllabus Point 1, State
v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). Because a trial court's review of
questions under Rule 404(b) are discretionary, on appeal this Court has rarely found that the
trial court abused its discretion in admitting the other bad acts evidence. See State v. LaRock,
196 W.Va. 294, 312, 470 S.E.2d 613, 631 (1996). If the Court does find the trial court
abused its discretion, then this Court will often then hold that the admission of the other bad
acts evidence in a criminal case was harmless error. LaRock, 196 W.Va. at 312 n. 28, 470
S.E.2d at 631 n. 28. See also, Rule 52(a), W.Va. Rules of Criminal Procedure 
(Harmless Error. Any error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.).
Despite its name, the harmless error doctrine, at least in the
context of Rule 404(b) errors, is not harmless to anyone.
First, the harmless error doctrine wastes judicial resources. The purported justification of this doctrine is that it conserves judicial resources by preserving convictions infected by Rule 404(b) errors in cases in which the other, admissible evidence of the defendant's guilt is overwhelming. This justification is dubious at best. If the remaining evidence indicating the defendant's guilt is otherwise so overwhelming, then why admit other acts evidence in the first place? The alleged need for the other acts evidence should be evaluated in light of the issues and other evidence available to the prosecution. If overwhelming proof is truly available, then there is no need for admission of the erroneous other acts evidence. This unnecessary evidence serves to distract and mislead the jury. In fact, inadmissible other acts evidence ensures there will be an ultimately futile appeal, which merely wastes the resources of the appellate courts, if not those of the litigants and their advocates.
Moreover, in the case of clearly erroneous admissions of other acts evidence, the overwhelming evidence argument is circular. It places an inexorable temptation before the prosecution to offer, and the district judge to admit, all evidence,
even that of questionable value, to create an overwhelming case against the defendant. This, in turn, encourages the admission of additional weak evidence because the more overwhelming the indication (or implication) of guilt, the greater the available protection under the harmless error doctrine.
Second, the harmless error doctrine . . . is intellectually indefensible. The harmless error cases were frequently factually indistinguishable from those cases in which Rule 404(b) errors required reversal. But reversals must be grounded on discernible law, not luck. When Rule 404(b) error is clear, no meaningful distinction between abusive and harmless error is possible. . . .
Third, application of the harmless error doctrine to Rule 404(b) errors is unfair to the defendant. The broad discretion and the great deference granted to trial judges in the admission of Rule 404(b) evidence, together with the long list of acceptable purposes under which other acts evidence may be admitted, already tilts the Rule 404(b) playing field sharply in the government's favor. The Rule is applied in such an inclusionary manner that propensity is the only purpose for which the evidence may not be admitted. Without a countervailing policy of reversing clear Rule 404(b) errors, the defendant's right not to be convicted for being a bad person, rather than for the crime charged, is meaningless. It is not too much to require both that district judges exercise greater care in excluding clearly erroneous other acts evidence. . .
Moreover, in the interest of fairness to the accused, what little territory these Rules still protect should be carefully guarded. An individual's personal freedom is at stake in the criminal setting; thus greater, not lesser, adherence by district courts to the Federal Rules should be required.
Stephanie Yost, supra, 23 S.W.U.L.Rev. at 684-86.
I realize that I will never convince our Court to revert back to the correct rule set out in State v. Miller, supra, in 1915. I therefore propose that Rule 404(b) be amended, either directly or through this Court's jurisprudence, to eliminate the harmless error safety net that prosecutors, trial courts, and this Court have relied upon to uphold convictions based upon the admission of uncharged misconduct. I am not advocating for the abrogation of the harmless error rule, only its elimination from our Rule 404(b) jurisprudence.
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. Removing Rule 404(b)
errors from the protection of the harmless error rule would force prosecutors and trial judges
to limit the evidence to relevant evidence pertaining to the specific charge in the indictment.
It would force prosecutors and trial judges to make more careful, consistent and hopefully
more equitable decisions about the admission of uncharged misconduct in criminal trials.
I otherwise respectfully concur with the majority's decision.