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Carson v. Fine2/10/1994
obative value of the evidence outweighs its prejudicial effect to the party against whom the evidence is offered. Acknowledging the inherent prejudice of such evidence, this court requires trial courts to state, for the record, the factors that favor its admission or exclusion. State v. Jones, 101 Wash. 2d 113, 120-22, 677 P.2d 131 (1984), overruled on other grounds in State v. Brown, 111 Wash. 2d 124, 761 P.2d 588 (1988).
Similarly, on-the-record balancing is required when determining the admissibility of prior misconduct under ER 404(b). State v. Jackson, 102 Wash. 2d 689, 693, 689 P.2d 76 (1984); State v. Tharp, 96 Wash. 2d 591, 597, 637 P.2d 961 (1981). ER 404(b) states that evidence of other crimes, wrongs or acts is inadmissible to prove the character of a person in order to show action in conformity therewith. Such evidence is admissible, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Jackson, at 693. The Jackson court observed that a record of a trial court's reasons for admitting evidence of prior misconduct is even more important than when evidence of prior crimes is admitted under ER 609:
In ER 609 cases, the evidence is only admitted for one purpose -- to impeach the defendant's credibility. Evidence can be admitted under ER 404, however, for several substantive purposes. Unless the trial court identifies the purpose for which it believes the evidence is relevant, it is difficult for that court
(or the reviewing court) to determine whether the probative value of the evidence outweighs its prejudicial effect.
Jackson, at 694.
As can be seen from this excerpt from Jackson, the focus of these rules clearly is upon the evidence, not upon the witness seeking to offer it. The problem with the Court of Appeals' notion of betrayal and the six evaluation factors proposed to counter it is that they focus on the identity of the witness rather than on the content of the proposed evidence. Four of the evaluative factors set forth by the Court of Appeals deal with witness identity rather than with the substance of the proposed testimony. One factor which the trial court must weigh is whether there are alternative experts available. Another factor which must be weighed is whether the defense has a compelling reason to call the particular doctor in question. Thus, under these two factors the same testimony becomes more or less prejudicial depending on whether there is any other witness who could offer the same evidence. The "prejudice" with which the Court of Appeals is concerned is that the jury will be more inclined to believe the treating physician than another expert. This is not the type of prejudice with which ER 404 and 609 are concerned. It is not the purpose of these rules, nor of ER 403, to exclude testimony because it is offered by an overly persuasive witness. Rather, the focus of these rules is on the prejudicial substance of the proposed testimony.
Even if we overlook the erroneous focus of the Court of Appeals' proposed factors, however, we do not see the reasons requiring a balancing on the record under ER 609 and ER 404(b) as applicable here. Under ER 403, the relevance of the evidence sought to be admitted is assumed. The only question is whether its probative val
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