Criminal Law Bulletin, Vol. 47, p. 998, 2011
40 Pages Posted: 27 Jan 2013
Date Written: September 8, 2010
Commentators addressing the incredible theoretical and functional difficulties surrounding the long accepted general principal that while other crimes, wrongs, or culpable acts are not admissible to prove the character of a person in order to show action in conformity therewith, such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” Fed.R.Evid. 404(b), have more or less thrown in the towel reverting to the bromide that fundamentally it all is a question of proper application of discretionary balancing, basically some version or another of Fed.R.Evid. 403. Such an approach is recommended by those adopting a totally theoretical approach to the enterprise as well not surprisingly also by the two commentators, Imwinkelried and Leonard, who have authored treatises devoted solely to the subject. Application of discretionary balancing approach represented by Fed.R.Evid 403 is and has also been the principle approach adopted by trial and appellate courts alike.
The result is the hodgepodge of decisions which the commentators bemoan while arguing for what is in fact limited and insufficient reform. The lack of clarity, consistency, predictable and very importantly acceptability as a matter of overall policy that results from the balancing approach of Fed.R.Evid. 403 with all of its common law subplots and nuances, in fact led to the enactment in the 1994 of Fed.R.Evid. 413 and 414. Rules 413 and 414 more or less made fully admissible evidence of the defendant’s commission of another offense or offenses of sexual assault and child molestation in spite of the continued theoretical applicability of the Rule 403 limiting balancing approach.
Further complicating rational analysis of admissibility of other crimes, wrongs, or culpable acts for another purpose is the lack of clarity and consistency along with the incredible flexibility and breadth as to the scope of the “other purposes” in fact listed in Rule 404(b), in particular motive, intent, and of course plan, sometimes referred to as common course or scheme.
What is needed is a fresh approach to the admissibility of other crimes, wrongs, or culpable acts evidence employing specific narrow analytically distinct and sound definitions with respect to several of the most commonly employed listed “other purposes.” In addition, what is needed is a clear recognition that in practice the subject matter of the other crimes, wrongs, or culpable acts evidence critically affects admissibility, such as domestic violence, sexual battery, child molestation, possession of recently stolen property, while in other situations other factors, such as same victim, may be in fact be controlling — controlling in the sense of making the other crimes, wrongs, or culpable acts evidence almost inevitably admissibility. A fresh approach should also contain detailed provisions dealing with burden of proof, notice, and distinguishing intrinsic from extrinsic evidence amongst others.
“Defining” into a new paradigm clearly breaks with traditional academic rhetoric. “Defining” into a new paradigm, it is suggested, stands the best chance of preserving the basic underlying common law principles as reflected in Michelson supra and Fed.R.Evid. 404(b), while facilitating more consistent, rational, predictable decisions with respect to the admissibility of other crimes, wrongs, or culpable acts evidence. Finally, clarity in definition accompanied by recognition that certain other crimes, wrongs, or culpable acts evidence are almost certainly going to be admitted will foster a more stringent approach to admissibility of other crimes, wrongs, or culpable acts evidence in those areas where unwarranted erosion of the general prohibition against character evidence for conformity has been taking place such as has occurred with respect to other crimes, wrongs, or culpable acts comprising merely unlinked plan evidence.
Suggested Citation: Suggested Citation
Graham, Michael H., Other Crimes, Wrongs, or Culpable Acts, Fed.R.Evid. 404(B): 'Defining' a New Paradigm (September 8, 2010). Criminal Law Bulletin, Vol. 47, p. 998, 2011; University of Miami Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2207057