§ 11.03 DETERMINING "MATERIALITY" UNDER RULE 401

• Jurisdiction: United States

§ 11.03. DETERMINING "MATERIALITY" UNDER RULE 401

Other-acts evidence must tend to prove a consequential (material) fact under Rule 401, i.e., facts proving essential elements of the charged offense.⁹ Some of the "purposes" specified in Rule 404(b), such as identity, intent, and knowledge, name essential elements of crimes; thus, evidence relevant to one of these purposes is usually material.¹⁰ Other listed "purposes," however, are not typically elements of crimes. For example, motive, opportunity, and plan are rarely essential elements. If other-acts evidence is offered for one of these purposes, the prosecutor must establish a relationship between that "purpose" and an essential element of the charged offense.

Deletion of the list of purposes in Rule 404(b) would probably be an improvement because "a frequent source of difficulty under Rule 404(b) is the tendency of prosecutors . . . to rely on a 'laundry list' of purposes."¹¹ Moreover, this tactic is often a subterfuge for sneaking character evidence before the jury.¹²

Typically, other-acts evidence is admitted as proof of one of three essential elements: (1) to show that the accused was the actor (identity issue); (2) to show that the accused possessed the requisite mental state (mens rea issue); or (3) to show that a crime has been committed (actus reus or corpus delicti issue).¹³ In addition, it is sometimes impossible to separate the charged offense and the other-act, often referred to as "interrelated" acts or res gestae.¹⁴ Finally, the entrapment defense raises further issues.¹⁵ Note, however, that this list is not exhaustive.¹⁶

[A] Proof of Identity; Modus Operandi

The identity of the person who committed the charged offense is always an essential element, and therefore always constitutes a consequential (material) fact. "Identity" is specifically listed in Rule 404(b). Moreover, several of the other listed "purposes" specified in the rule, such as motive, opportunity, and preparation may be relevant to prove identity.

Other-acts evidence may show identity in numerous ways. For example: (1) In a murder case, evidence of the defendant's affair with the victim's wife (the other-act) may be admissible to establish motive, and motive is probative of identity. (2) In a murder case in which the victim was killed by a bomb, evidence that the defendant had used a bomb in a prior offense may be admissible to establish the defendant's technical know-how with explosives, and this capacity (opportunity) is probative of identity. (3) In a bank robbery case, evidence that the defendant had previously stolen a car that was later identified as the robbery getaway car may be admissible to establish preparation and is probative of identity.

Modus operandi. Another way to prove identity is through what is known as modus operandi evidence, i.e., the similarity between the other act and the crime charged is so striking that the same person probably committed both offenses. The commission of two robberies with a weapon, however, is not sufficent.¹⁷ The method of committing the crimes must leave a "behavioral fingerprint"¹⁸ or "signature."¹⁹ The distinctive characteristic may be one feature, such as the mark of Zorro ("Z"), but often it is the accumulation of a multitude of features.

Joinder and severance of offenses. Sometimes the admissibility of other-acts evidence is raised in cases considering whether to grant a motion for severance of offenses. If the evidence of crimes in the other counts of an indictment is admissible under Rule 404(b), the argument for severance of offenses under Criminal Rule 14 is undercut because the evidence would be admissible even if the motion is granted.²⁰

Rule 403. Identifying the material issue, such as identity, is only the first step in determining admissibility. The evidence is still subject to exclusion under Rule 403 (see below).

[B] Proof of Mens Rea: Intent, Knowledge

Other-acts evidence is often used to show that the accused possessed the requisite mental state for the charged offense, i.e., to establish the mens rea. Two of the listed "purposes" in Rule 404(b) — intent and knowledge — frequently are mens rea elements of crimes, and other-acts evidence may be relevant to prove these mental states.²¹ Motive and preparation, which are also listed, may relate to these elements. For example, a defendant's illicit affair with a homicide victim's wife is an other act which tends to show "motive," and a person with a motive is more likely to have intentionally killed than a person without a motive. Similarly, evidence that the defendant stole a gun the day before a homicide may show "preparation" and thus is probative of premeditation (mens rea) in a first-degree murder case.

Lack of mistake or accident. The "defenses" of mistake and accident also relate to mens rea.²² Neither is an affirmative defense; both involve a claim that the defendant lacked the requisite mens rea for the charged crime. For example, a defendant charged with murder who testifies that a gun discharged "accidently" because he was unfamiliar with firearms is raising a defense of accident, which tends to negate the mens rea element of a purposeful killing. To rebut this claim, evidence that the defendant had used a gun during a prior robbery (the other act) may be admissible.²³ Similarly, a defendant who claims she made a mistake about the nature of a controlled substance is asserting a lack of mens rea, i.e., knowledge that the substance was heroin.²⁴ Accordingly, her prior heroin transactions may be admissible to show that she is familiar with heroin, and thus a "mistake" is unlikely.

Evidence of absence of mistake or accident is typically admitted in rebuttal rather than in the prosecution's case-in-chief because the issue is often raised for the first time during the defense's case-in-chief.²⁵

Rule 403. Identifying the material issue, such as mens rea, is only the first step in determining admissibility. The evidence is still subject to exclusion under Rule 403 (see below).

[C] Proof of Corpus Delicti

Although not as common as the identity and mens rea examples cited above, other-acts evidence may be used to show that a crime has been committed, i.e., to establish the corpus delicti or actus reus of the crime. The famous "Brides in the Bath" case illustrates this use.²⁶ Smith was accused of murdering his wife, who had been found drowned in a bath tub. The prosecution introduced evidence showing that his two other wives had also drowned while taking baths. The other drownings were relevant to show that the...