§ 11.04 DETERMINING ADMISSIBILITY UNDER RULE 403

• Jurisdiction: United States

§ 11.04. DETERMINING ADMISSIBILITY UNDER RULE 403

Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of issues, or misleading the jury. Other-acts evidence presents all three of these dangers, especially the risk of unfair prejudice because the jury may use the evidence for the impermissible purpose of inferring character.³⁹

[A] Disputed Issues

Even if "other acts" evidence is probative of an essential element of the charged offense, the evidence should not be admissible unless that element is a disputed issue in the particular case. This approach is especially important when other-acts evidence is offered on "mens rea."⁴⁰ Consequently, the Second Circuit has stated that "other crimes evidence is inadmissible to prove intent when that issue is not really in dispute."⁴¹ Although some courts reject the "genuine dispute" requirement,⁴² their view unnecessarily opens the door to highly prejudicial evidence: "[I]f a mere claim of innocence were enough to automatically put intent at issue, the resulting exception would swallow the general rule against admission of prior bad acts. . . . [T]he drugs in question were clearly a distribution quantity, the packages had price tags, and the defendant did not deny they were intended for distribution by someone, intent was 'at issue' in only the most attenuated sense."⁴³

[B] Stipulations

Frequently, a stipulation will eliminate a dispute and thus should preclude the need for other-acts evidence.⁴⁴ The stipulation, however, "must be comprehensive and unreserved, completely eliminating the government's need to prove the point."⁴⁵ However, in Old Chief v. United States,⁴⁶ the Supreme Court indicated that a stipulation need not be routinely accepted in this context. This suggestion has not gone unnoticed, and an offer to stipulate is no longer determinative.⁴⁷

[C] Alternative Proof

The drafters noted that admissibility should depend on "whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof."⁴⁸ The cases reflect this point: "There is other evidence in the record that . . . is far more probative on this point than the proffered 404(b) evidence."⁴⁹

[D] Jury Instructions

It may be possible to reduce the prejudicial effect of other-acts evidence through instructions informing the jury that such evidence may not be used to infer character.⁵⁰ One appeals court stated that the trial court "must carefully identify, in its instructions to the jury, the specific factor named in the rule that is relied upon to justify admission of the other acts evidence, explain why that factor is material, and warn the jurors against using the evidence to draw the inferences expressly forbidden in the first sentence of Rule 404(b)."⁵¹

The effectiveness of a limiting instruction is doubtful. "To tell a jury to ignore the defendant's prior convictions in determining whether he or she committed the offense being tried is to ask human beings to act well beyond mortal capacities."⁵² Indeed, by emphasizing the evidence, the instruction may be more...