Intro to the Federal Rules of Evidence - 9

6. Other Acts Evidence: Non-propensity evidence (FRE 404(b))

a. Other crimes, wrongs, or acts
FRE 404(b) embraces “wrongs” and “acts” as well as crimes. The other-act need not be similar to the charged offense. The other-act need not have occurred prior to the charged offense.

It applies in both criminal and civil litigation: although the rule usually applies to criminal cases, it also applies to civil suits.

b. FRE 404(b) analysis
The application of the rule requires three steps:

FRE 401: identify a material issue (other than character) for which the evidence is being offered to prove (i.e., identity of perpetrator, mens rea).

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

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

c. Determining “Materiality” under FRE 401

i) Inadmissible
To prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it.
ii) Admissible
To establish circumstantially some element of the crime charged/ cause of action
iii) Some examples (FRE 404(b))
FRE 404(b) enumerates some specific elements which may be proven by other-crimes evidence, but does not foreclose the possibility of others.

Identity: it requires that the identity of a perpetrator is in issue.
Other-acts evidence is relevant to identity only indirectly, thru showing the same signature, i.e., reflecting unusual modus operandi, or a common plan that tends to show that the crime charged was done by the same person who carried out other parts of the common plan.

Preparation: a showing of preparation is likely to show the defendant’s state of mind: for instance, to show purposefulness and to negate the possibility of accident. It also increases the likelihood that the act prepared for in fact took place.

Intent: other-acts evidence may be used to show that the defendant acted maliciously, deliberately, or with the specific intent required for the crime.
Generally, the way other-crimes evidence becomes relevant to the defendant’s mental state is that the defendant admits the act charged, but asserts an innocent explanation of that act. Evidence of similar acts is admitted on the theory that “the oftener a like act has been done, the less probable it is that it could have been done innocently.”

Knowledge: other-acts evidence may e used to show, by similar acts, that the act in question was not performed inadvertent, accidently, involuntarily, or without guilty knowledge. In a crime requiring the element of knowingly, it is commonly used.

Motive: since motive itself is never an essential element of a crime, the use of other-crimes evidence to establish motive may be probative either of conduct (if D had a motive to do so, it is more likely that he did the act than if he had no motive) or of intent (did he do so intentionally, purposefully, or maliciously, etc.?)

d. Determining Admissibility under FRE 403
The determination must be made whether the danger of undue prejudice substantially outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making decision (ACN).

e. Defendant’s Participation in Other Act: FRE 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 courts had required “a preponderance of evidence,” “substantial proof,” or “clear and convincing evidence” of the defendant’s involvement. The Supreme Court rejected all of these approaches and adopted a prima facie evidence standard, based on FRE 104(b).
Huddleston v. United States, 485 U.S. 681 (1988).

f. Pretrial notice in criminal cases (FRE 404(b))
It is intended to reduce surprise and promote early resolution on the issue of admissibility.

EXAMPLE 1 (in a pretrial motion)
DEFENSE LAWYER: Your honor, we made this motion to preclude the plaintiff from introducing
evidence that the defendant was previously cited for running the stop sign at Main and Elm, the same stop sign involved in this accident. That’s exactly the kind of evidence prohibited by Rule 404(b), because its only probative value is to show propensity, namely that if that defendant failed to stop at that stop sign before, he probably failed to stop at the stop sign this time.
JUDGE: Plaintiff?
PLAINTIFF LAWYER: Your honor, that evidence not only is circumstantial evidence making it more likely he failed to stop at the time of the collision, it also proves he knew that there was a stop sign at the intersection and that he was required to stop there.
DEFENSE LAWYER: That’s propensity evidence, and improper. Not only that, there’s no issue of knowledge in this case. They can’t invent an issue and then claim their offered evidence proves that nonexistent issue.
JUDGE: Defendant’s motion is granted. The only probative value of this evidence is to show the defendant is a bad driver, which is barred by Rule 404(b).

EXAMPLE 2
DEFENSE LAWYER: Your honor, this is our motion to preclude the prosecution from introducing evidence that one month before the burglary of the fast-food restaurant – the charge that we are going to start trying today – the defendant committed a burglary of a house in another neighborhood. That’s improper under Rule 404(b), and we ask that evidence be precluded.
PROSECUTOR: This evidence shows identity and a common plan and scheme. He was caught burgling a residential home, one month before. That home is only two miles from the fast-food restaurant he is charged with burgling. That evidence makes it much more likely he’s the burglar of the fast-food restaurant. It’s highly relevant on an issue in this case – identity.
DEFENSE LAWYER: This is not similar M.O. evidence, your honor. There’s nothing common about these two events, other than they are both burglaries. The real probative point of this evidence is to show that once a burglar, always a burglar. That’s exactly what the jury will take that evidence for, and that’s improper under both Rules 404(b) and 403.
JUDGE: The defense motion is granted. There’s no similar modus operandi between the two burglaries that would make this evidence highly probative on the identity issue, and there’s substantial risk that a jury would misuse this evidence and use it as proof of propensity, regardless of any limiting instruction I could give.