Permitted Uses
Evidence of a person's other crimes, wrongs, or acts cannot be used to argue that the person has a bad character and therefore acted in conformity with it on the occasion in q
5. Other Crimes, Wrongs, or Acts: Permitted Uses
Although Rule 404(b)(1) prohibits evidence of other crimes, wrongs, or acts to show propensity, Rule 404(b)(2) contains an important exception: “This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
- When other crimes, wrongs, or acts are offered for a non-propensity purpose, they may be admissible.
- The “other purposes” listed in the rule are merely illustrative. Parties may point to other, unlisted purposes to support admission of evidence under this rule.
- [Parties sometimes refer to showing a “common plan or scheme” as another purpose. That purpose may incorporate one or more of the explicitly identified purposes.]
- Case law requires trial judges to apply the “unfair prejudice” provision of Rule 403 with special care to evidence proffered under Rule 404(b)(2). Jurors may use evidence admitted under Rule 404(b)(2) to make the type of propensity inference forbidden by Rule 404(b)(1). That is a type of unfair prejudice that judges guard against by applying Rule 403.
Other-act evidence barred for propensity may still come in when offered for a genuine non-propensity purpose, because then it proves something other than character. Even so, the judge must still run the unfair-prejudice screen.
Evidence of a person's other crimes, wrongs, or acts cannot be used to argue that the person has a bad character and therefore acted in conformity with it on the occasion in question. That is the forbidden propensity inference. But the same evidence may come in when it is offered for a different, non-propensity purpose, because then it proves something other than character.
The rule lists familiar examples of proper purposes, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, and lack of accident, but that list is only illustrative, not closed. A party may point to any genuine non-propensity purpose, including an unlisted one, and a common plan or scheme is often invoked as such a purpose because it can fold in one or more of the listed items.
Identifying a proper purpose does not end the inquiry. Because jurors are tempted to misuse the evidence for the very propensity inference the rule forbids, the judge must still run the unfair-prejudice balancing screen, and case law tells judges to apply that screen with special care to other-acts evidence.
MOPP-KIA: Motive, Opportunity, intent, Preparation, Plan, Knowledge, Identity, Absence-of-mistake.
Proper purpose opens the door, but the prejudice screen still guards it, and the list is open, not closed.
A defendant is charged with burning down his own warehouse to collect insurance. He claims the fire was accidental. The prosecutor offers evidence that the defendant set two earlier fires at other buildings he owned and collected insurance both times. Is the prior-fires evidence admissible?
An option says the evidence is admissible the instant a proper purpose is named, with no further analysis.
A proper purpose only lifts the propensity bar; the judge must still run the unfair-prejudice screen, applied with special care to other-acts evidence.An option leans on the true but incidental fact that the evidence also makes the person look bad and treats that as decisive.
Incidental reflection on character does not exclude evidence offered for a genuine non-propensity purpose.An option uses only, never, or always, often by treating the listed purposes as a closed set or a common scheme as pure propensity.
The listed purposes are merely illustrative, so unlisted non-propensity purposes qualify and unqualified absolutes are false.An option imports a real but out-of-context rule, such as treating prior similar acts as habit.
Habit is out of scope; the evidence is analyzed as a non-propensity purpose screened for unfair prejudice, not under a habit rule.An option subtly misstates the rule, for example by denying that identity is a recognized purpose.
Identity, intent, plan, knowledge, and the rest are recognized non-propensity purposes, and the list is illustrative besides.a party offers evidence of a person's other crimes, wrongs, or acts, especially a defendant's prior bad acts.
identify the purpose: if the only logical use is that the person is the type who would do this, it is propensity and barred.
look for a non-propensity purpose such as motive, intent, identity, absence of mistake, or any other genuine purpose, remembering the listed purposes are merely illustrative and not exhaustive.
even with a proper purpose, apply the unfair-prejudice screen with special care, because the danger is that the jury will misuse the evidence for the forbidden propensity inference.
a proper purpose opens the door but does not guarantee admission.
A defendant is on trial for embezzling funds from her employer. She testifies that she moved the money between accounts by honest mistake and never intended to take it. To rebut that claim, the prosecutor offers proof that the defendant pulled the same accounting maneuver at a prior job, where she kept the diverted money. The defense objects, arguing the proof only shows the defendant is a dishonest person who steals from employers.
Is the evidence of the defendant's prior conduct admissible over the defense objection?
A defendant is charged with a residential burglary committed by someone who entered through a second-story window using a distinctive looped rope ladder and left a hand-drawn floor plan behind. The prosecutor offers evidence that the defendant committed three earlier burglaries using the identical looped rope ladder and hand-drawn floor plans. The prosecutor offers the evidence to prove that the same person committed all the break-ins. The defense argues the earlier burglaries can be used only to prove a listed purpose such as motive or intent.
How should the court treat the prosecutor's stated purpose for the other-acts evidence?
A defendant is charged with selling a controlled substance, and his sole defense is that he did not know the package he delivered contained drugs. The prosecutor offers evidence that on two earlier occasions the defendant delivered identically wrapped packages that were later found to contain the same drug. The prosecutor offers the prior deliveries to show the defendant knew what he was carrying. The defense concedes knowledge is a proper purpose but asks the court to weigh the risk that the jury will treat the defendant as a habitual dealer.
What must the court do before admitting the prior-delivery evidence?
A defendant is charged with poisoning a business rival. The prosecutor offers evidence that, in the weeks before the death, the defendant secretly bought the same rare poison and researched its lethal dose. The prosecutor offers the purchase and research to show the defendant prepared for and planned the killing. The defense objects that preparation and plan are different from the listed purpose of motive and so cannot support admission.
Is the defense's objection a sound basis to exclude the evidence?
A defendant is charged with running a fraudulent investment operation. The prosecutor offers evidence that the defendant orchestrated two earlier ventures using the identical shell-company structure, the same forged audit letters, and the same staged investor presentations. The prosecutor offers the earlier ventures to prove a common scheme that incorporated the defendant's plan and knowledge. The defense argues that a common scheme is not on the list of recognized purposes and therefore cannot support admission.
Is the defense correct that a common scheme cannot support admission of the other-acts evidence?