§ 6.04 OTHER CRIMES OR UNCHARGED MISCONDUCT EVIDENCE

• Jurisdiction: United States

§ 6.04 OTHER CRIMES OR UNCHARGED MISCONDUCT EVIDENCE

[1] THE DOCTRINE

Even in rebuttal to defense character evidence, the prosecution may not prove other crimes by the accused simply to prove that the accused is a law-breaking, immoral person. However, the prosecution may introduce such evidence for other purposes. As Federal Rule of Evidence 404(b) announces:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person in accordance with the character.³
(2) Permitted Uses: . . . . This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or absence of accident.

Thus, if the evidence is logically relevant to a fact in issue other than character, and the prosecution's need for the evidence outweighs its prejudicial character, the prosecution may introduce the proof of the uncharged act. The federal courts follow the inclusionary approach to the uncharged misconduct doctrine: The prosecution may offer the evidence on any theory of logical relevance other than the theory explicitly forbidden by Rule 404(b).

The prosecutor offering uncharged misconduct evidence faces two primary problems. First, the prosecutor must demonstrate that the evidence is logically relevant to a material fact in issue other than character. For instance, suppose that the accused is charged with a February 1st bank robbery. While fleeing from the crime scene, the robber dropped his pistol that bore a serial number. Without violating the character evidence prohibition, the prosecution could introduce evidence that on January 1st, the accused stole that very pistol from a local gun store. The evidence of the earlier larceny puts the accused in possession of the same, one-of-a-kind instrumentality used to perpetrate the charged crime. Or suppose that when the police lawfully stop the accused's vehicle, they find cocaine in the trunk. The accused defends on the theory that he did not know that the cocaine was secreted in the car. The prosecution could offer evidence that on several other occasions, the police found contraband drugs in vehicles driven by the accused. It is true that innocent persons sometimes find themselves enmeshed in suspicious circumstances, but it is objectively unlikely that that will happen to an innocent person more than once. In these situations, the evidence of the uncharged misconduct is logically relevant on a noncharacter theory; under the doctrine of objective chances, the prosecution can demonstrate the relevance of the evidence without relying on any assumption about the accused's personal, subjective bad character.

Today one noncharacter theory, the doctrine of objective chances, is growing in importance. Suppose that a defendant charged with infanticide claims that the child's death was an accident. Invoking the doctrine, the prosecution may introduce evidence that several other children in the defendant's custody...