Written by Albany Law School Professor, Melissa Breger.
Keeping up with current case law can be a true treasure trove for classroom teaching. It can breathe life into an otherwise ordinary topic. And truth is so often more compelling than fiction.
A few years ago, while reading the Evidence Law Faculty ListServ, I learned about the case of US v. Harold Henthorn. (Thank you to Ann Murphy, Gongaza Law!)
Henthorn had been recently tried federally for the intentional murder of his wife, Toni Henthorn. He claimed his wife of 12 years, Toni, accidentally fell off a remote 100-foot cliff in Colorado. The team of AUSAs on the case wrote a brilliant motion to try to introduce FRE 404(b) evidence. The motion was granted.
Click here to review the motion.
The prosecution sought to introduce:
- Evidence that Lynn Henthorn, also Harold’s well-insured (former) wife of 12 years, “accidentally” and mysteriously died under a Jeep in the middle of the night in a remote location;
- Evidence that Harold took out very hefty life insurance policies as beneficiary for his wives, as well as for his former sister-in-law (of whom he was also romantically interested); and
- Evidence that a 40-foot wooden beam “accidentally” hit Toni Henthorn from the roof of the remote lake cabin in the middle of the woods some years earlier.
The trial court agreed to allow in the previous events where Lynn died and Toni was injured, and the fact that life insurance was taken out on both of Henthorn’s wives with himself as a beneficiary. The Court did not allow in the claims that Henthorn also took out an insurance policy on his sister-in-law’s life. The Court required limiting instructions on the pieces of evidence it allowed in at trial.
In class, I explain to the law students the story of the Henthorn family, but I do not have them actually read the cases or the motions until after we have discussed the case in class. (After class, all of these materials are posted and distributed). In the classroom, I have the law students analyze each piece of evidence that the prosecution is trying to enter into evidence under FRE 404(b).
Click here to review Rule 404(b).
This exercise offers a rich, nuanced vehicle for discussion to explore the very important Rule of Evidence, FRE 404(b), in comprehensive detail. The rule, also misleadingly called the Rule of “PRIOR BAD ACTS” reads:
Character Evidence.
404 (b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.
At the same time there were eerie similarities between the events, there were also obvious differences. The defense certainly had much room to dispute the idea that there was any common plan or scheme here. The events were also decades apart in timing. The trial court allowed in the acts with limited instructions that they be considered only under “planning, intent, and lack of accident.”
When the 10th Circuit reviewed the case, the Court noted that prior events were “extraordinarily similar to the charged offense.” In terms of the large span of years between the events, the Court noted “acts “quite remote to the crime[] charged have frequently been deemed by us and our sister circuits to be relevant if they were sufficiently similar to those crimes.”
Click here to review the 10th circuit case.
The case, while truly tragic and disturbing, has provided future lawyers with a wealth of material for learning complicated concepts about FRE 404(b), The Doctrine of Chances and the admissibility of prior crimes, wrongs and other acts.
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