State v. Maylett , 108 Idaho 671 ( 1985 )

BURNETT, Judge,

specially concurring.

I join in upholding the trial judge’s decision to admit evidence of prior, uncharged sexual conduct. But I do so upon the narrow ground that such evidence was relevant to show a common scheme or plan. The testimony by the victim and her sister disclosed a series of sexual encounters in which the circumstances and conduct were strikingly parallel to those portrayed in evidence of the crime charged. I am not persuaded that the other proffered bases for admitting the evidence — intent and the absence of accident or mistake — were substantially at issue during the trial. Maylett denied committing the acts charged; he did not contend — indeed, he could not logically have contended — that he committed the acts with innocent intent, by accident or by mistake.

Having made a threshold determination of relevancy, the district judge properly weighed the probative value of the evidence against the likelihood of unfair prejudice. This balancing process is committed to the sound discretion of the trial court. Here, the judge gave sound reasons on the record for ascribing greater weight to the probative value. I agree with my colleagues that no abuse of discretion has been shown.

The limited scope of the trial judge’s discretion deserves further comment. The State’s brief suggests that trial court discretion is not limited to the balancing decision but encompasses the relevancy determination and embraces any other ruling on an evidentiary question. In short, the State’s position appears to be that rulings on evidence are discretionary in general and that appellate review is limited to looking for an abuse of discretion. The State’s position draws superficial support from a much-quoted passage in State v. Terry, 98 Idaho 285, 561 P.2d 1318 (1977). There, our Supreme Court, speaking per curiam, said, “A trial court has broad discretion in the admission of evidence at trial. Its judgment will only be reversed when there has been a clear abuse of discretion.” This simplistic statement has been repeated in subsequent decisions including, I must concede, some issued by the Court of Appeals. See, e.g., State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct.App.1982). But I think it is time to arrest the growth of this vague, discretion-based approach to evidentiary questions.

The law of evidence is structured by rules, forged by centuries of experience and continually tested against evolving notions of fairness and truth-seeking. Our Supreme Court recently has adopted a detailed and painstakingly drafted formulation of such rules. See Idaho Rules of Evidence (effective July 1, 1985). These rules are not mere precatory guides to discretion; they are standards controlling the outcome of evidentiary questions. A trial judge possesses no “discretionary” authority to alter or to disregard specific standards — particularly in criminal trials, where these standards impart real meaning to an accused’s right to a fair trial.

Discretion is properly exercised only when a rule of evidence calls for it. Thus, as illustrated by the present case, if — but only if — evidence of uncharged crimes is relevant to a permissible purpose, such as establishing a common scheme or plan, then the trial judge may exercise discretion in balancing the probative value against the likelihood of unfair prejudice. Today’s opinion correctly defines this limited scope of discretion. It does not succumb to a facile characterization of all evidentiary issues as mere questions of discretion.