§ 11.13 Key Points

• Jurisdiction: United States

§ 11.13 Key Points

Common misconceptions. The terms "similar act" or "prior crime" are frequently used to describe this subject matter; these terms are misleading. 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. The other act also need not be "similar" to the charged offense or have occurred prior to the charged offense; evidence of a subsequent act may be admissible.

Moreover, the accused may offer evidence under Rule 404(a) in an attempt to show another person committed the charged crime ("reverse Rule 404(b)"). Finally, Rule 404(b) is not limited to criminal cases; it applies in civil litigation as well.

Analysis. The application of Rule 404(b) requires three steps:

(1) Rule 401—identify a consequential "material issue" (other than character) for which the evidence is being offered to prove (i.e., identity of perpetrator, mens rea, corpus delicti, etc.);
(2) Rule 403—balance the probative value of the evidence against the risk that the jury will ignore the limiting instruction and make the prohibited character inference (unfair prejudice); and
(3) Rule 104(b)—determine whether there is prima facie evidence of accused's involvement in the other act.

Material Issues. Other-acts evidence must tend to prove a consequential (material) fact under Rule 401, i.e., facts proving essential elements of the charged offense. 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. 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.

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). In addition, it is sometimes impossible to separate the charged offense and the other act. This is often referred to as "interrelated" acts or res gestae...