§ 11.05 Accused's Participation in Other Act: FRE 104(b)

• Jurisdiction: United States

§ 11.05 Accused's Participation in Other Act: FRE 104(b)

For other-acts evidence to be relevant, the prosecution must offer some evidence tending to show that the defendant committed the other act.⁵⁴ Common law courts employed a variety of standards to describe the requisite burden of proof in this context: "preponderance of evidence," "substantial proof," or "clear and convincing evidence."

In Huddleston v. United States,⁵⁵ the Supreme Court rejected all of these approaches. Instead, the Court, based on Rule 104(b), adopted a prima facie evidence standard.⁵⁶This is a very lax standard. The Court explained:

In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact—here, that the televisions were stolen—by a preponderance of the evidence.⁵⁷

Some states reject Huddleston as insufficiently protective of the accused's right to a fair trial: "[T]here are important reasons to apply a clear and convincing standard, rather than some lesser standard, to evidence of prior bad acts. Such evidence is quite capable of having an impact beyond its relevance to the crime charged and may influence the jury's decision on issues other than those on which it was received, despite cautionary instructions from the judge."⁵⁸

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Notes:

^[54] See Huddleston v. United States, 485 U.S. 681, 689 (1988) ("In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.").

^[55] 485 U.S. 681 (1988).

^[56] See supra § 7.03 (discussing conditional relevancy).

^[57] Huddleston, 485 U.S. at 690. See also United States v. Yu Qin, 688 F.3d 257, 262 (6th Cir. 2012) (Huddleston test "often met by the accused's admission that the prior act or conviction occurred."); United States v. Bergrin, 682 F.3d 261, 279 (3d Cir. 2012) (holding that under Huddleston, trial judge does not assessing credibility of witness testifying about other act; "By discounting Pozo's testimony based on a lack of corroboration and questions about...