§ 11.06 OTHER-ACTS EVIDENCE OFFERED BY THE ACCUSED

• Jurisdiction: United States

§ 11.06. OTHER-ACTS EVIDENCE OFFERED BY THE ACCUSED

Rule 404(b) is typically used by the prosecution. For example, evidence of distinctive similarity between the other-act and the crime charged is frequently offered to prove identity — i.e., the modus operandi of both crimes is so alike that the same person probably committed both offenses. The probative value of modus operandi to show identity, however, is the same when offered by the defense, sometimes referred to as a "reverse 404(b)" issue.⁵⁹

In this context, the defense is attempting to show that another person, using a distinctive modus operandi, committed the earlier robberies and, since the same modus operandi was used in the charged offense, that person also committed it.⁶⁰Indeed, the argument for admissibility is stronger in this context because the risk of unfair prejudice to the defendant is not present.⁶¹ Nevertheless, admissibility is subject to Rule 403, and the evidence cannot merely reflect propensity: "[T]he prohibition against the introduction of bad acts evidence to show propensity applies regardless of whether the evidence is offered against the defendant or a third party."⁶²

--------

Notes:

^[59] See United States v. Wilson, 307 F.3d 596, 601 (7th Cir. 2002) ("Under what has come to be known as 'reverse 404(b) evidence,' a defendant can introduce evidence of someone else's conduct if it tends to negate the defendant's guilt. The trial court is entitled to exclude this kind of evidence if, upon a balancing of the evidence's probative value against considerations such as prejudice, undue waste of time, and confusion of the issues under Rules 401 and 403 . . . , it concludes that the evidence would not be beneficial."); United States v. Stevens, 935 F.2d 1380, 1401-06 (3d Cir. 1991) (extensive review of cases). See generally Broderick, Reverse 404(b) Evidence: Exploring the Standards When Defendants Want to Introduce Other Bad Acts of Third Parties, 79 U. Colo. L. Rev. 587 (2008); McCord, "But Perry Mason Made It Look So Easy!": The Admissibility of Evidence Offered by a Criminal Defendant to Suggest That Someone Else is Guilty, 63 Tenn. L. Rev. 917, 936 (1996).

^[60] See People v. Hall, 718 P.2d 99, 104 (Cal. 1986) (noting that "courts should simply treat third-party culpability evidence like any other evidence"); Watkins v. State, 23 A.3d 151, 155 (Del. 2011) (trial court abused its discretion by precluding evidence of a similar robbery to which another person pled guilty); Garland v...