Must We All Be Bold as Lions? Unfair Prejudice from Evidence of Flight and Alternative Standards

A dramatic escape from a rehabilitation hospital, a high-speed car chase resulting in a crash, and an admission of fleeing to avoid jail. Despite fitting the description of an action movie, State v. Strizich presented a conundrum for the Montana Supreme Court, one that created substantial disagreement among the justices on whether evidence of the defendant’s flight should be admitted at trial. One major disagreement was whether to apply the four inferences test used by the federal courts, whereby courts determine the probative value of flight evidence—and therefore, its admissibility at trial—by assessing: the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. The inferences test was first introduced by the Fifth Circuit in United States v. Myers and has since been widely adopted throughout the federal courts. To rephrase the test, the inferences are intended to only allow evidence of flight if a judge can confidently infer: (1) the defendant was actually fleeing, (2) they were fleeing because they felt guilty, (3) they felt guilty about the charged crime, and (4) they felt guilty about the crime charged because they actually committed the crime. At the Montana Supreme Court, the four inferences test has only made one other appearance—in a 1996 concurrence cautioning against the low probative value of evidence of flight. The Court’s opinion in Strizich was primarily an analysis of relevance and undue prejudice, leaving the jury to infer whether the actions were flight and why. The majority responded to the defendant’s objection under Montana Rule of Evidence 401, determining the flight was relevant because it showed consciousness of guilt; after all, Strizich admitted he fled to avoid prosecution. The majority avoided ruling on ...