The Second Coming of Res Gestae: A Procedural Approach to Untangling the 'Inextricably Intertwined' Theory for Admitting Evidence of an Accused’s Uncharged Misconduct

Posted: 20 Dec 2009

See all articles by Edward J. Imwinkelried

Edward J. Imwinkelried

University of California, Davis - School of Law

Date Written: December 18, 2009


This article deals with a facet of the uncharged misconduct doctrine. On the one hand, the doctrine forbids the prosecution from treating an accused’s uncharged misconduct as circumstantial proof of the accused’s commission of the charged offense. The prosecution cannot rely on the simplistic theory, “He did it once, ergo he did it again.” On the other hand, the doctrine permits the prosecution to offer the evidence on non-character theories of logical relevance such as proof of identity or motive. Federal Rule of Evidence 404(b) codifies the doctrine.The numbers tell the story of the importance of the doctrine. Rule 404(b) generates more published opinions than any other provision of the Federal Rules; it is the most litigated issue on appeal. In many states, errors in the admission of such evidence are the most common ground for appellate reversal. One of the most controversial facets of the doctrine is the “inextricably intertwined” theory. According to this theory, even when the prosecution cannot articulate a conventional non-character theory for introducing evidence of an accused’s uncharged misconduct, the court should admit the evidence if the evidence is “inextricably intertwined” with the prosecution witness’s narrative of the charged crime. The courts have invoked the inextricably intertwined theory in hundreds of cases. The treatise writers and law review commentators have been virtually unanimous in criticizing the theory. The thrust of the criticism is that the substantive test is nebulous, allowing trial judges to admit evidence possessing neither genuine non-character relevance nor a truly inseverable connection to the testimony about the charged offense.

Although the criticism of the theory’s substantive test has merit, the thesis of this article is that the substantive criticisms largely miss the mark. The essential decision confronting the judge is an editorial task: Can the references to the uncharged misconduct be redacted from the witness’s account of the charged crime without rendering the witness’s incomprehensible or significantly reducing the narrative’s legitimate credibility? Editing must be done on a sensitive, case-by-case basis. The nature of the task makes it wishful thinking to believe that the courts will ever formulate a bright line substantive test.

The real hope for reining in the theory’s excesses lies in procedural reform. The enclosed article proposes four reforms: A requirement for pretrial notice, an exchange of versions of the witness’s narrative between the prosecution and defense, new constraints on the trial judge’s ruling, and a mandate for a limiting instruction on any references to uncharged misconduct submitted to the jury. These reforms would give trial judges the time and procedural tools needed to engage in deliberate, thoughtful editing.

Suggested Citation

Imwinkelried, Edward J., The Second Coming of Res Gestae: A Procedural Approach to Untangling the 'Inextricably Intertwined' Theory for Admitting Evidence of an Accused’s Uncharged Misconduct (December 18, 2009). UC Davis Legal Studies Research Paper No. 198, Available at SSRN:

Edward J. Imwinkelried (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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