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THE LEWIS LAW FIRM, P.A.

Former Prosecutor Ken Lewis

Central Florida Criminal Defense

WILLIAMS RULE EVIDENCE IN FLORIDA

Williams Rule evidence is use of a prior act by a criminal defendant to suggest something that they did something in this case. Williams Rule evidence used by the state can be very damaged in a criminal case.  Ken Lewis has had over 200 jury trials and knows how to prevent Williams Rule evidence from being used or to minimize its damage. If you are not consulting with an experienced trial attorney you may suffer serious consequences. 

In the case of Williams v. State, 110 So.2d 654, (Fla. 1959).  In the Williams case the Court held:

Even though evidence tending to reveal the commission of a separate and wholly independent offense was inadmissible, nevertheless, evidence revealing other crimes is admissible if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system of general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried.

 

RULE: Florida Statute 90.404(2)(a) (Williams Rule)

This rule is classified as character evidence in the evidence code. It allows similar fact

evidence of other crimes, wrongs, or acts when relevant to prove a material fact in issue

such as:

 1. Proof of motive

 2. Opportunity

 3. Intent

 4. Preparation

 5. Plan

 6. Knowledge

 7. Identity

 8. Absence of mistake or accident

 9. Other special circumstances as specified in case law

I. Requirements of Williams Rule

           A. When can it be used?

There are a high number of reversals in this area.  A defense attorney must always object to any Williams Rule Evidence.    

Nshaka v. State, --- So.3d ----, 2012 WL 716033, Fla. (4th DCA 2012).

March 07, 2012 Under the Williams Rule for admission of other crimes evidence, two determinations must be made by the trial court: (1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice. West's F.S.A. § 90.404(2)(a).

There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant, the points of similarity must have some special character or be so unusual as to point to the defendant. Chambers v. State, 692 So.2d 210, 211 (Fla. 5th DCA 1997).

 

Peterson v. State, 2 So.3d 146, 153 (Fla.2009).  The trial court must make four determinations: (1) whether there is sufficient evidence that the defendant committed the collateral crime; (2) whether the collateral crime meets the necessary similarity requirements necessary to be relevant; (3) whether the collateral crime is too remote, so as to diminish relevance; and (4) whether the prejudicial effect of the collateral crime substantially outweighs the probative value.

 

If identifiable points of similarity are evident, this Court must then determine whether the dissimilarities between the factual situations are insubstantial. See Gore v. State, 599 So.2d 978, 983–84 (Fla.1992).

 

            B. Notice Requirement

 No fewer than 10 days before trial, the State shall furnish to the accused a

written statement of the acts or offenses it intends to offer at trial. This is usually entitled "Notice of intent to offer similar fact evidence" or "Notice of intent to offer Williams Rule evidence." The notice must describe the acts with the particularity required of an indictment or information.

Nine day notice okay.  Barbee v. State, 630 So.2d 655, (5th DCA 1994). Non compliance in notice will result in a Richardson Hearing.   

 

            C.  Special Jury Instruction

When the evidence is admitted, the court shall, if requested, charge the

jury on the limited purpose for which the evidence is received.

2.4. EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS “WILLIAMS RULE”§

The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you for the limited purpose of proving [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity][the absence of mistake or accident] on the part of the defendant and you shall consider it only as it relates to [that][those] issue[s].

 

            D.  No notice requirement for impeachment and rebuttal material

The rule specifies that evidence used for impeachment or rebuttal does not

have to be included in a notice.  (d) 1. When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), paragraph (b), or paragraph (c), no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant's counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.

It is a good practice, however, not to try to ambush the defense with this technique. The law states that the State must list rebuttal witnesses in discovery if the witnesses may be reasonably anticipated to be needed. Lucas v. State, 376 So.2d 1149 (Fla. 1979)

Consequently, you may win the argument on the notice requirement, but lose your witnesses on the anticipated rebuttal objection. Judges will always feel more comfortable allowing the evidence if the notice has been filed.

 

            E. Burden

Since the Williams Rule is one of admissibility, the burden is on the defendant to raise an objection to show that the evidence should be excluded. Once the defendant raises his objection, the burden shifts to the State to show relevancy and to show that the evidence is not being offered to show propensity to commit crimes. The offering party must prove that the defendant committed the collateral act by clear and convincing evidence.  Mclean v. State, 934 So.2d 1248, (Fla. 2006). 

 

            F. Object if prosecutor makes it a feature of the case

It may be reversed. Argue only the legal exception as to why the evidence is admissible.

 

            G. Reverse Williams Rule may be used by the defense

Rivera v. State, 561 So.2d  536 (Fla. 1990). It does not appear, however, that the defense is required to the follow the same 10 day notice provision as required by the State.

            H. Cannot use if defendant was acquitted on the prior act

Perez v. State, 801 So.2d 276 (4th DCA 2001) says that where Williams Rule evidence of a collateral crime is admitted in a trial resulting in a conviction, but the defendant is subsequently acquitted in a later trial of the collateral crime, the conviction must be reversed. Based on that case, there's always a danger in trying the collateral crime after using it as Williams Rule evidence in a first trial, because if you don't convict him a second time, the first conviction will be reversed.8. It is important to realize that Williams Rule evidence is not admissible simply because it is similar to the facts of the instant case. The grounds by which it is offered must be relevant and pertinent to the instant case. For example, the appellate court will not allow the evidence on the grounds that it establishes identity if the only issue in trial is consent.

 

           I.  Pretrial hearing not required

Pretrial hearing is not required under the rule. Barber v. State, 781 So.2d 425, (5th DCA 2001).   

Barber contends that because no clear and convincing evidence was presented prior to admission before the jury that the former offense was actually committed by her, the court erred by allowing the evidence. We disagree. The State is only required to give notice of its intent to rely on Williams rule evidence pursuant to section 90.404(2)(b), Florida Statutes (1997). Barber responded with a motion to strike, which was heard and denied. That was all that was required by the motions that were filed.

 

           J.  Williams Rule vs. Inextricably Intertwined

 (Context) Inseparable crime evidence is admitted not under 90.404(2)(a) as similar fact evidence but under section 90.402 because it is relevant.

Notice is not required if the State seeks to introduce evidence of collateral acts which are inextricably intertwined with the crime charged under the general rule of relevance. See § 90.402, Fla. Stat. (2008); Dorsett v. State, 944 So.2d at 1213, (3rd DCA, 2006): Griffin v. State, 639 So.2d at 968, (Fla. 1994). Examples of such evidence is evidence which is necessary to (1) “adequately describe the deed[;]” (2) “provide an intelligent account of the crime(s) charged[;]” (3) “establish the entire context out of which the charged crime(s) arose[;]” or (4) “adequately describe the events leading up to the charged crime(s)[.]” Dorsett, 944 So.2d at 1213

Inextricably Intertwined Evidence is amissible if necessary to put the entire criminal episode in its proper context; otherwise, an intelligent account of the episode could not be given without reference to the other crimes.  Gorham v. State, 454 So.2d 556 (Fla. 1984); Heiney v. State, 447 So.2d 210 (Fla. 1984); Austin v. State, 500 So.2d 264 (Fla. 1st DCA 1986); Jackson v. State, 522 So.2d 802 (Fla. 1988); Coolen v. State, 696 So.2d 738 (Fla. 1997).  The notice requirement of 90.404(2)(b)(1) does not apply because such evidence does not fall within the ambit of Williams v. State, 110 So.2d 654 (Fla. 1959), but is given as a courtesy to notify the attorney that similar fact evidence will be used to put the entire episode in context. Ferrell v. State, 686 So.2d 1324, 1328–29 (Fla.1996) (evidence of robbery was properly admitted to complete the story of the crime on trial and to explain defendant's motivation in seeking to prevent retaliation by the victim).

II.  Specific Case Law

1. Proof of motive No similarity requirement. 

State v. Rimes, 993 So.2d 1132 (5th DCA 2008).  Fact that Defendant used drugs was admissible to establish motive in grand theft case.

2. Opportunity-physical presence to commit the act or mental or physical ability.   

3. Intent

 Sedney v. State, 817 So.2d 1074, (5th DCA 2002).  Evidence that defendant planed to rob a market, whentthere but the robbery did not occur, and then proceeded to rob a house of prostitution was admissible to show intent of later crime.  Bradley v. State, 787 So.2d 732, (Fla. 2001).  Evidence that defendant vandalized car of victim’s girlfriend one week prior to murder where evidence was relevant to intent. 

4. Preparation

5. Plan

 Looks at similarity in accomplishing event.  Defendant’s inducement of women with cocaine in the parking lot prior to sexual battery admissible..  Williams v. State, 592 So.2d 350, (3rd DCA 1992). 

Strangulation is a unique similarity of a crime considered in the admissibility of collateral crime evidence.  Johnston v. State, 863 So.2d 271 (Fla. 2003).  Prior crime in which Defendant attempted to strangle witness was admissible.  Duffey v. State, 741 So.2d 1192, (4th DCA 1999).

6. Knowledge

Used when Defendant says he was unaware a criminal act was being committed.  Generally used to prove Defendant knew items he was selling were stolen.

Huddleston v. United State, 108 S.Ct 1496, (1988). 

7. Identity (Must be enough similarities)

Evidence of  participation in a  similar robbery may be admitted to establish identity and participation in the robbery charged in this case. Ackers v. State, 599 So.2d 22 (Fla. 5th DCA 1992).  Duckett v. State, 568 So.2d 891 (Fla.1990);  Rogers v. State, 511 So.2d 526, (Fla. 1987).

            8. Absence of mistake or accident

Vincent v. State, 885 So.2d 963, (3rd DCA 2004)

Evidence that defendant stabbed her then-boyfriend in chest in exactly the same part of the chest as that in which victim was stabbed was admissible in murder trial as similar-fact evidence of other crimes, wrongs, or acts to show that victim was stabbed intentionally and not, as defendant claimed, as result of victim accidentally stabbing himself. West's F.S.A. § 90.404(2)(a).

            9. Other special circumstances as specified in case law

To rebut the defense of insanity. Fogelman v. State, 648 So.2d 214, (4th DCA 1994).  In Fogelman, the court upheld the State’s use of similar fact evidence to rebut the defense of insanity.  Although finding that the acts were not uniquely similar the court allowed the testimony regarding a prior sexual assault to show that the defendant had acted in a similar manner while sane.  The court relied on Rossi v. State, which held that when defendant's sole defense to crime charged was insanity, the State, in an effort to meet its burden of proving requisite level of intent to commit crime and to negate insanity defense, could produce evidence of similar criminal act committed by defendant some ten years previously.

III.   WILLIAMS RULE IN SEX CASES  

90.404 (2)(b) 1. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

 

In the line of cases allowing Williams Rule evidence to corroborate the testimony of a child, it is important for there to be a special need to corroborate the child's testimony. This exception was established because the courts recognized the special problems inherent in proving these cases. There is rarely any corroborating evidence for the state to offer. Therefore,

if the state has ample corroborating evidence, the appellate courts frown on allowing the admission of this evidence under this exception.

 

Saffor v. State, 660 So.2d 668, (Fla. 1995):

Evidence of defendant's prior attempted lewd assault of his niece was not sufficiently similar to charged offense to be admissible where ages and genders of the two children were different and acts took place during different time frames, at different locations, and at different times of day. Although fact that collateral sex crime and charged offense both occur in familial context constitutes significant similarity for purposes of Williams rule, there must be some additional showing of similarity in order for the collateral sex crime

evidence to be admissible.

 

The Court also does not impose the same stringent similarity

requirements necessary for cases outside the familial context. Instead, the court adopts a "relaxed" similarity requirement: "We hold instead that when the collateral sex crime and the charged offense both occur in the familial context, this constitutes a significant similarity for purposes of the Williams rule, but that these facts, standing alone, are insufficient to authorize admission of the collateral sex crime evidence. There must be

some additional showing of similarity in order for the collateral sex crime evidence to be

admissible."

 

State v. Rawls, 649 So.2d 1350, (Fla. 1994):

Evidence of prior similar offenses was admissible to corroborate child victim's testimony even though offense did not occur within familial or custodial setting where evidence was strikingly similar to victim's testimony, and victim's credibility was at issue.  Familial relationship must be one in which there is recognizable bond of trust with defendant. Consanguinity and affinity are strong indicia of familial relationship but are not necessary. Defendant and victim need not reside in the same home, and familial relationship may exist where individual legitimately exercises parental-type authority over child or maintains custody of child on a regular basis. This case was decided on a motion for rehearing. This opinion revises the court’s previous opinion. The Supreme Court gives an excellent review of Florida case law as it relates to "Familial or custodial authority." The Court rules that "Where an individual legitimately exercises parental -type authority over a child or maintains custody of a child on a regular basis, a familial relationship may exist for purposes of the

admissibility of collateral crimes evidence under Heuring. The Court then rules that the facts of the instant case do not qualify as familial or custodial authority, but do qualify as strikingly similar. The Court then follows the lead of Charles Ehrhardt and rules that testimony can be used to corroborate the testimony of child victims even when they do not fall under familial or custodial authority heading.

 

Schwab v. State, 636 So.2d 3 (Fla. 1994):

In a sexual battery and murder prosecution, testimony from three boys aged eleven to fifteen was relevant to show identity, motive and opportunity among other things. All were short, had blond hair, all weighed less than one hundred pounds. Schwab ingratiated himself with the family of one of the witnesses, as he did with the instant victim, and attempted to befriend the others before offering them rides. He held each at knifepoint and admittedly cut the instant victim's clothes off with a knife. This case was decided on principles common to all cases. There was no unique analysis by virtue of the victim being a child. The Court also addresses the

"feature of the trial" issue.

 

Feller v. State 637 So.2d 911 (Fla. 1994):

In cases involving sexual battery within familial situation, evidence of other sexual batteries on another family member can be admitted to corroborate testimony of victim that defendant committed sexual abuse upon victim; however, the charged and collateral offenses must share some unique characteristic or combination of characteristics which sets them apart from other offenses. The charged offense involved allegations of several incidents of penile and digital penetration of the vagina while the child was unclothed inside the family dwelling. The collateral offense involved a single episode of touching on outside of the child's

clothing while she sat on the defendant's knee as they were fishing.

 

Duckett v. State, 568 So.2d 891 (Fla. 1990):

Testimony of petite 19 and 18 year old women concerning police officer's "passes" at them made while he was in patrol car, on duty, and in uniform was admissible similar fact evidence in prosecution of officer for sexual battery and first degree murder of 11 year old girl, relevant to establishing officer's mode of operation, identity, and common plan.  Testimony of 17 year old woman that she had voluntarily met police officer at remote area while he was on patrol and performed oral sex on him was not sufficiently similar to

facts in prosecution of officer for sexual battery and first degree murder of 11 year old girl

to be admissible but admission of testimony was harmless.

 

Beasley v. State, 518 So.2d 917 (Fla. 1988):

Testimony of victim's sister that defendant had committed lewd and lascivious assault

upon her was admissible in prosecution for attempted sexual battery and lewd and

lascivious assault to establish that defendant had opportunity to perform illegal acts on

victim, who was defendant's stepdaughter.

 

Heuring v. State, 513 So.2d 122 (Fla. 1987):

Evidence that the defendant charged with sexual battery of his stepdaughter had sexually battered his own daughter 20 years earlier was admissible in that the opportunity to sexually batter young children in a familial setting occurs only generationally and evidence was relevant to corroborate the victim's testimony.

This case involved a situation in which the defendant was accused of sexually molesting his step daughter between the ages of 7 and 12. The State offered Williams Rule evidence that the suspect sexually battered his daughter when she was between the ages of 7 and 15. The Williams Rule evidence involved acts that had

occurred approximately 20 years before the charged offense. The court first addressed the issue of remoteness in time. In holding that a 20 year span did not require exclusion of the evidence, the court stressed that the opportunity to sexually young children in the familial setting often occurs only generationally. The suspect had battered the children only when the opportunity arose. The court does not address the issue of what its ruling would be if the defendant had encountered several other opportunities yet failed to act

upon them. In holding that the similar fact evidence is relevant simply to corroborate the victim's testimony, the court noted the special problems encountered in cases involving sexual battery committed within the familial context. The court noted that the victim is typically the sole witness and corroborative evidence is scant. Credibility becomes the focal issue in the case. Although many courts have tried to stretch the similar fact evidence as to be relevant for modus operandi, common scheme or plan etc...the Heuring court feels that

the better approach is simply to treat it as corroborating the victim's testimony.  Understanding the rationale of this ruling will assist greatly in arguing it to the court as it applies to your case.

If you need an experienced Criminal Defense Attorney in Orlando, Tampa or the rest of Central Florida contact Ken Lewis at the Lewis Law Firm today.