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 unfair prejudice and probative value because they determined Strizich failed to preserve his right to appeal any issues related to Rule 403 by not making a specific objection during trial. While the majority acknowledged there was little probative value in the lurid facts of the flight, they determined Strizich had not met his burden to show that admitting the evidence resulted in a “fundamentally unfair” trial. The three-justice dissent determined that the district court abused its discretion by allowing evidence of the flight into trial. The dissent, utilizing the four inferences test, argued it “fail[ed] to see how Strizich’s departure . . . in a vehicle driven by [his friend], three weeks after the burglary offenses occurred, is an admission . . . of the burglary.” How should this split be interpreted? This comment analyzes evidence of flight, as applied before and after the adoption of the four inferences test, and how the lack of concrete standards and protections for criminal defendants has resulted in the admission of unfairly prejudicial evidence. Part II considers Montana’s past applications of evidence of flight. Part III analyzes the evolution of flight evidence under the federal system, with particular attention to the adoption of the four inferences test and cases that have stretched its applicability. Part IV looks at how the United States Supreme Court and other states have grappled with evidence of flight, particularly how “immediacy” is weighed. Part V discusses criticism of the four inferences and the failure of courts to adapt the analysis to account for a chang- ing culture. Part VI proposes three potential alternatives to the four inferences test that may result in a more just criminal process. Part VII concludes this comment.
Parker Streets, Comment, Must We All Be Bold as Lions? Unfair Prejudice from Evidence of Flight and Alternative Standards, 84 Mont. L. Rev. 2 (2023).