In Washington, the introduction of evidence of other misconduct to show intent or absence of mistake or accident has proven particularly troublesome. Washington courts have made no attempt to delineate the differences between proof of intent and proof of absence of mistake or accident. Nor have they satisfactorily distinguished either of the proofs from a mere showing of propensity to commit crime. By failing to make these distinctions, the courts undermine the letter and spirit of ER 404(b). The lack of clear standards to guide application of the intent and absence of mistake or accident aspects of ER 404(b) leaves trial and appellate courts on their own in making and reviewing admission determinations. Rather than struggle with the complexities of ER 404(b), these courts often mechanically admit other misconduct evidence whenever the state offers it with the announced intention of proving intent or absence of mistake or accident. This "magic password" approach results in a curious mix of contradictory holdings which do no more than pay lip service to the plain language of ER 404(b), while ignoring the policies underlying the rule.
Eric D. Lansverk,
Admission of Evidence of Other Misconduct in Washington to Prove Intent or Absence of Mistake or Accident: The Logical Inconsistencies of Evidence Rule 404(b),
61 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol61/iss3/21