§ 11.01  Introduction [156-60]

 

Rule 404(b) provides that evidence of other crimes, wrongs, or acts, although not admissible to prove character, may be admissible for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  The terms “similar act” or “prior crime” are frequently used to describe this subject matter; these terms are misleading.  Although often used to admit criminal acts, by its own terms, Rule 404(b) is not limited to crimes; it embraces “wrongs” and “acts” as well.   Moreover, the other-act need not be “similar” to the charged offense.  The other-act need not have occurred prior to the charged offense; evidence of a subsequent act may be admissible.  Finally, Rule 404(b) is not limited to criminal cases; it applies in civil litigation as well.

 

§ 11.02  Rule 404(b) Analysis  [160-61]

 

The application of the rule requires three steps:

 

(1)  Rule 401 – identify a material issue (other than character) for which the evidence is being offered to prove (i.e., identity of perpetrator, mens rea, or corpus delicti);

 

(2) Rule 403 – balance the probative of the evidence against the risk that the jury will ignore the limiting instruction (Rule 105) and make the prohibited character inference (unfair prejudice); and

 

(3) Rule 104(b) – determine whether there is prima facie evidence of accused’s involvement in the other act.

 

§ 11.03  Determining “Materiality” Under Rule 401  [161-65]

 

Typically, other-acts evidence is admitted as proof of one of three essential elements:  (1) to show that the accused was the actor (identity issue); (2) to show that the accused possessed the requisite mental state (mens rea issue); or (3) to show that a crime has been committed (corpus delicti issue).  In addition, it is sometimes impossible to separate the charged offense and the other-act.  This is often referred to as “interrelated” acts or res gestae. Finally, the entrapment defense raises further issues in this context.

 

§ 11.04  Determining Admissibility Under Rule 403

 

Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of issues, or misleading the jury.  Other-acts evidence presents all three of these dangers, especially the danger of unfair prejudice because the jury may use the evidence for the impermissible purpose of determining character.

 

                                                [A]       Disputed Issues 

 

Even if  “other acts” evidence is probative of an essential element of the charged offense, the evidence should not be admissible, according to some courts, unless that element is a disputed issue in the particular case.

 

                                                [B]       Stipulations

 

Frequently, a stipulation will eliminate a dispute and thus should obviate the need for other-acts evidence. However, in Old Chief v. United States, 519 U.S. 172, 190 (1997), the Supreme Court indicated that a stipulation need not be routinely accepted in this context.

 

                                                [C]       Jury Instructions

 

It may be possible to reduce the prejudicial effect of other-acts evidence through instructions informing the jury that such evidence may not be used to show the defendant’s character (Rule 105).

 

§ 11.05  Defendant’s Participation in Other Act:  Rule 104(b)

 

For other-acts evidence to be relevant, the prosecution must offer some evidence tending to show that the defendant committed the other act.  Many common law courts had required “a preponderance of evidence,” “substantial proof”, or “clear and convincing evidence” of the defendant’s involvement.  In Huddleston v. United States, 485 U.S. 681 (1988), the Supreme Court rejected all of these approaches.  Instead, the Court, based on Rule 104(b), adopted a prima facie evidence standard.

 

§ 11.06  Other-act Evidence Offered by the Accused

 

The probative value of modus operandi to show identity is the same when offered by the defense, sometimes referred to as a “reverse 404(b)” issue.  In this context, the defense is attempting to show that another person, using a distinctive modus operandi, committed the earlier robberies and, since the same modus operandi was used in the charged offense, that person also committed it.

 

§ 11.07  Entrapment Cases

 

A majority of jurisdictions follow the “origin of intent” test or subjective theory of entrapment.  Under this test, entrapment occurs “when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells v. United States, 287 U.S. 435, 442 (1932) (emphasis added).  Under this view of entrapment, the defendant’s predisposition (propensity) is a material issue, and the defendant’s prior criminal conduct becomes relevant.

 

§ 11.08  Notice Requirement

 

In 1991 Federal Rule 404(b) was amended to include a notice provision.

 

§ 11.09  Double Jeopardy & Collateral Estoppel

 

In Dowling v. United States, 493 U.S. 342 (1990), the Supreme Court rejected double jeopardy and due process arguments against the prosecution’s use of an other-act that was the subject of an acquittal.