Uncharged Misconduct Under 404(b)

State Bar of Michigan- Michigan Bar Journal- May 2019

3 Pages Posted: 20 May 2019

Date Written: 2017

Abstract

Uncharged Misconduct or evidence of other crimes, wrongs or bad acts is not admissible to prove the character of a person to show that he or she acted similarly in the current case.

It may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge or absence of mistake or accident.

Evidence admissible under MRE & FRE 404(b) is subject to the balancing test of MRE & FRE 403. The question for the court on admissibility is whether 404 (b) evidence tends to prove a particular fact of consequence in the litigation. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. Thus, 404 (b) evidence is left to the sound discretion of the trial judge.

Keep in mind that uncharged misconduct or evidence of prior bad acts applies to Civil cases as well as Criminal cases. If a civil plaintiff is succeeds in introducing evidence of the defendant's uncharged misconduct, the plaintiff may receive a verdict larger than normal.

Keywords: Uncharged Misconduct, MRE 404(b), FRE 404(b), Criminal Cases, Civil Cases, Prior Bad Acts

Suggested Citation

Johnson, James A., Uncharged Misconduct Under 404(b) (2017). State Bar of Michigan- Michigan Bar Journal- May 2019. Available at SSRN: https://ssrn.com/abstract=3385745

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