§ 11.01 Introduction

• Jurisdiction: United States

§ 11.01 Introduction

"Other acts" evidence is the most litigated issue in the Rules of Evidence. Also known as prior crimes, bad acts, or uncharged misconduct, the subject has vexed courts and lawyers for years. Long ago, Wigmore noted the "bewildering variances of rulings in the different jurisdictions and even in the same jurisdiction."¹ Unfortunately, the adoption of the Rules of Evidence has not appreciably changed this picture.

Federal Rule 404(b) provides that evidence of other crimes, wrongs, or acts, although not admissible to prove character, may be admissible for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 404(b) must be read along with Rule 404(a). In effect, Rule 404(b) is a clarification provision. Rule 404(a) prohibits only the circumstantial use of character evidence (character-as-proof-of-conduct). When evidence of other crimes, wrongs, or acts is not offered for that purpose, Rule 404(a) simply does not apply. For example, if a person steals a gun and later uses that weapon to commit a murder, the theft may be relevant in the homicide prosecution to show the identity of the murderer. Although evidence of the theft incidentally shows larcenous character, it is not being offered for that purpose, and hence Rule 404(a) does not prohibit its admission.²

[A] Common Misconceptions

Several aspects of Rule 404(b) have caused unnecessary problems. The terms "similar act" or "prior crime" are frequently used to describe this subject matter; these terms are misleading.

Noncriminal conduct. Although often used to admit criminal acts, by its own terms, Rule 404(b) is not limited to crimes; it includes "wrongs" and "acts" as well.³ As an example, consider a murder case in which the prosecution's theory is that the defendant killed the victim because he wanted to marry the victim's wife. Proof of an affair between the defendant and the victim's wife (the other-act) may be admissible to establish motive and, ultimately, identity. In most jurisdictions, adultery is no longer a crime.

Dissimilar acts. As the above example shows, the other-act need not be "similar" to the charged offense. (However, under some theories of admissibility, such as modus operandi, remarkable similarity is the key of admissibility.)⁴

Subsequent acts. The other-act need not have occurred prior to the charged offense; evidence of a subsequent act may be admissible.⁵ For example, if...