Other Crimes, Wrongs, or Culpable Acts Evidence: The Waning Penchant Toward Admissibility as the Wars Against Crime Stagger on; Part I. The War on Drugs -- The Seventh Circuit Crosses Over to the Dark Side

Abstract

Earlier articles in the Criminal Law Bulletin have explored the fundamentals and current practice as to the admissibility of other crime, wrong, or act evidence, including a proposal for "'Defining' A New Paradigm", 47 Crim.L.Bull. 998 (2011), urging a restructuring of character evidence to finally recognize the admissibility in fact of other crimes, wrongs, or acts evidence when offered for conformity with respect to certain subject matter areas. This article on the War on Drugs, 49 Crim.L.Bull. 875 (2013), and the next article in the series that will deal with Sexual Assault and Child Molestation, 49 Crim.L.Bull. 1159 (2013), explore recent legislative and judicial trends currently influencing the admissibility of other crime, wrong, or act evidence that move in the opposite direction. Both articles are premised upon the notion that society has tired of conducting the respective wars. With respect to war on drugs, society is simply, apparently, becoming less concerned with reducing access to illegal narcotics and more concerned with the possible risk of enhancing the error rate for wrongful convictions.

As the decades have past, society has grown weary of the war on drugs while at the same time continuing its pursuit. Justification for the war in Afghanistan on the basis in part of the war on drugs simply does not resonate with the American public. At the same time, most local prosecutors have more or less stopped charging individuals with mere possession of marijuana, Medical marijuana, both real and imaginary, is on a substantial uptake. Legalization of marijuana generally in a limited number of states has been approved by the voting public. A majority of Americans when polled now favor legalization of recreational marijuana.

The public’s weariness and perception of hopelessly with the war on drugs has found its way, it is suggested, recently into federal court of appeals decisions in drug prosecution cases. On some occasions the "unfair prejudice" prong of Fed.R.Evid. 403 was elevated and relied upon to preclude admissibility of other crimes, wrongs, or acts evidence relevant for another purpose as specified in Fed.R.Evid. 404(b)(2). In addition, in the last several years not only has the expansive interpretation approach to inextricable intertwined evidence come upon attack, other courts of appeals have reexamined the admissibility of prior drug offenses under Fed.R.Evid. 404 itself sometimes reaching the conclusion that such other crime, wrong, or act evidence is in fact nothing more than character evidence offered to prove that on a particular occasion the person acted in accordance with that character and thus barred by Fed.R.Evid. 404(b)(1).

"Tell me it just ain’t so!!!"

The Seventh Circuit has in fact declared that inextricably intertwined is a defunct doctrine and that a prior conviction for cocaine possession with intent to distribute is no longer admissible in a prosecution against the same defendant under Fed.R.Evid. 404(b)(2) for cocaine possession with intent to distribute.

The Seventh Circuit in the war on drugs has clearly crossed over to the dark side!!!

Keywords: Evidence, Drugs, Seventh Circuit

JEL Classification: K10, K14, K19