modus operandi exception in Washington

2014The Supreme Court agreed with Division One that Division Two had confused the common scheme or plan exception to ER 404(b) with the modus operandi exception to the rule, which requires evidence sufficiently unique and atypical of the way the crime is usually committed to serve as a “signature” and be probative of whether a crime was committed by a particular person. ¶32 While the split of authority was once again resolved in favor of admissibility by DeVincentis, it was with admonitions from the Supreme Court that “ ‘caution is called for in application of the common scheme or plan exception,’

2014While the split of authority was once again resolved in favor of admissibility by De Vincentis, it was with admonitions from the Supreme Court that'" caution is called for in application of the common scheme or plan exception,'" id. at 18 (quoting State v. DeVincentis, 112 Wn.

2014App. 152, 159 , 47 P.3d 606 (2002), aff’d, 150 Wn.2d 11 ); “[r]andom similarities are not enough,” id.; “the degree of similarity... must be substantial,” id. at 20 ; and “admission of this kind of evidence requires more than merely similar results.” Id. ¶33 Driving home the importance of substantial similarity, the court pointed out that while the State had sought to offer testimony from several adolescent girls who accused DeVincentis of sexual misconduct, the trial court admitted the testimony of only one—the one who had been groomed for sexual contact in multiple steps similar to the victi

2003DeVincentis, 112 Wash.App. at 159 , 47 P.3d 606 .

2014The Supreme Court agreed with Division One that Division Two had confused the common scheme or plan exception to ER 404(b) with the modus operandi exception to the rule, which requires evidence sufficiently unique and atypical of the way the crime is usually committed to serve as a “signature” and be probative of whether a crime was committed by a particular person. ¶32 While the split of authority was once again resolved in favor of admissibility by DeVincentis, it was with admonitions from the Supreme Court that “ ‘caution is called for in application of the common scheme or plan exception,’

2014While the split of authority was once again resolved in favor of admissibility by De Vincentis, it was with admonitions from the Supreme Court that'" caution is called for in application of the common scheme or plan exception,'" id. at 18 (quoting State v. DeVincentis, 112 Wn.

2007The Court of Appeals consolidated their appeals and affirmed the trial court, concluding, “The trial court did not err by admitting the evidence that Foxhoven and Sanderson engaged in prior acts of graffiti under the modus operandi exception to ER 404(b) because the tags were signature-like and both defendants admitted they had used the same tags before.” State v. Foxhoven, noted at 132 Wn.

2007The Court of Appeals consolidated their appeals and affirmed the trial court, concluding, "The trial court did not err by admitting the evidence that Foxhoven and Sanderson engaged in prior acts of graffiti under the modus operandi exception to ER 404(b) because the tags were signature-like and both defendants admitted they had used the same tags before." State v. Foxhoven, 132 Wash.App. 1053 , No. 54793-3-I, slip op. at 2, 2006 WL 1217213 , *1 (Wash.Ct.App.

2002Bowen, 48 Wn.

2002Bowen, 48 Wash.App. at 193 , 738 P.2d 316 .

2024Id. at 311-12 (quoting Russell, 125 Wn.2d at 63 ).4 Crucially, however, the parties themselves focused “primarily” on the fourth factor, cross- admissibility, and the Court discussed only that factor and only whether the modus operandi exception to ER 404(b) applied.

2009The State's reliance on Lough is misplaced because the ER 404(b) evidence in Lough was admitted under the common plan or scheme exception to establish the criminal act charged, not under the modus operandi exception to prove the defendant's identity. 125 Wash.2d at 855-61, 889 P.2d 487 .

2009Our Supreme Court reasoned, "[e]vidence of unique modus operandi is relevant when the focus of the inquiry is the identity of the perpetrator." DeVincentis, 150 Wash.2d at 21 , 74 P.3d 119 .

1994The proponent must meet the "stringent test of uniqueness”, State v. Eastabrook, 58 Wn.