(March 2002)

by Thomas Lundy

    The defendant’s uncharged acts or crime can be a powerful weapon for the prosecution. Typically, standard cautionary and limiting instructions are available when the prosecution relies on such evidence. However, in some circumstances uncharged misconduct may provide the basis for helpful defense theory instruction which, for shorthand purposes, are referred to as "Reverse 404b" instructions in this article.

    Ordinarily, evidence of uncharged acts or crimes is offered by the prosecution. However, evidence that the defendant did not commit a similar uncharged crime (e.g., on the basis of alibi, third party guilt, misidentification) supports an inference that the defendant did not commit the charged crime. Therefore, the defense should have the right to present evidence of uncharged crimes and argue that the defendant did not commit the uncharged crime thus giving rise to an inference that the defendant did not commit the charged crime due to the similarity between the two crimes. (See U.S. v. Stevens (3rd Cir. 1991) 935 F2d 1380, 1404-05.)

    "The syllogism goes as follows. In view of the many parallels between the two crimes, one person very likely committed both; and because [defendant] was exonerated by [the victim of the other offense] ... [defendant] was not that person. The critical question, of course, is one of similarity." (Stevens, 935 F2d at 1401.)

    "To introduce other crimes evidence the defendant need not show that there has been more than one similar crime, that he has been misidentified as the assailant in a similar crime, or that the other crime was sufficiently similar to be called a ‘signature’ crime. Although those criteria are relevant to measuring the probative value of a defendant’s proffer, the criteria are not necessarily absolute barriers to its admission. Rather, a defendant must demonstrate that the ‘reverse FRE 404(b)’ evidence has a tendency to negate his guilt and that it is substantially more probative than prejudicial to the prosecution." (Wharton’s Criminal Evidence (West, 14th ed. 1986) §§ 4:40, p. 434.) Accordingly, other crime evidence may be admitted on a lower showing of similarity in a "reverse FRE 404(b)" case because the element of prejudice to the defendant need not be considered. (See e.g., Stevens, 935 F2d at 1404; New Jersey v. Garfole (NJ 1978) 388 A2d 587, 591.)

SAMPLE INSTRUCTION # 1 [Defendant Did Not Commit The Uncharged Act]:

    Evidence has been presented of an uncharged offense. It is the prosecution's theory that the [alleged] uncharged offense is so similar to the charged offense that both offenses must have been committed by the same person.

    However, it is the defendant's theory that [he] [she] did not commit the uncharged offense.   Under this theory, evidence that the defendant did not commit the uncharged offense would permit an inference that [he] [she] did not commit the charged offense.

    [Please remember, however, that the defendant is not obligated to prove [his] [her] offenses. Unless you all agree that the prosecution has proven the defendant guilty of the charged offense beyond a reasonable doubt, you must acquit [him] [her].]

[Source: NCJIC.]

    You have heard evidence of [an] uncharged act[s] which is alleged to be similar to the offenses now charged against the defendant. If you have a reasonable doubt as to whether the defendant committed [any of] the uncharged act[s] this alone may be sufficient to leave you with a reasonable doubt that the defendant committed the charged offense.

[Source: NCJIC.]

    There has been evidence received of an uncharged act which was allegedly similar in nature to the charged offense.

    If ___________________ (third party) committed the uncharged act, [this may be sufficient to leave you with a reasonable doubt that the defendant committed the charged offense] [you may infer that _________________ (third party) was the person who committed the charged offense].

    Please remember, however, the defendant is not required to prove that _______________ (third party) committed the other acts or the charged conduct. Rather, it is the prosecution which must prove the defendant's guilt beyond a reasonable doubt. If, after consideration of all the evidence, including any evidence that __________________ (third party) committed the other act[s], you have a reasonable doubt that the defendant committed the charged offense you must find [him] [her] not guilty.

[Source: NCJIC.]

SAMPLE INSTRUCTION # 4 [Alibi As To Uncharged Act]:

    There has been evidence received of an uncharged act which was allegedly similar in nature to the charged offense.

    If you have a reasonable doubt that the defendant was present when the uncharged act was committed [you may infer that the defendant did not commit the charged offense] [this may leave you with a reasonable doubt that the defendant committed the charged offense].

[Source: NCJIC.]

    When the defendant relies on a third party guilt defense, the jury should be permitted to consider uncharged acts committed by the alleged third party suspect.

    Third party culpability is a well recognized defense upon which the defendant should be permitted to offer evidence and obtain defense theory jury instructions. (Larimore v. State (AR 1994) 877 SW2d 570, 575; see also United States v. Stevens (3rd Cir.1991) 935 F2d 1380, 1401-03; United States v. Armstrong (9th Cir.1980) 621 F2d 951, 953; Smith v. State (AR 1990) 801 SW2d 655, 658.) Hence, when the third party has committed uncharged acts relevant to prove the third party's guilt, the defendant should have the right to an instruction relating the uncharged act to the third party defense. (See State v. Scheidell (WI 1999) 595 NW2d 661, 667-68 [under "legitimate tendency" test, uncharged act evidence may be admissible if defendant can show that third party had: (1) the motive and (2) the opportunity to commit the charged crime, and (3) can provide some evidence to directly connect the third person to the crime charged]; see also U.S. v. Calle (11th Cir. 1987) 822 F2d 1016, 1021 [third-party guilt is substantive defense which cannot be limited by trial court pursuant to rules governing impeachment]; People v. Hall (CA 1986) 41 C3d 826, 833 [226 CR 112].)

As recognized by Wigmore:

"It should be noted that this kind of [character] evidence may be also available to negative [sic] the accused's guilt. For example, if A is charged with forgery and denies it, and if B can be shown to have done a series of similar forgeries connected by a plan, this plan of B is some evidence that B and not A committed the forgery charged. This mode of reasoning may become the most important when A alleges that he is a victim of mistaken identification." (2 Wigmore, Evidence §§ 304 at 252 (Chadbourn rev.1979).)

    Such "reverse rule 404(b)" evidence is admissible because "a criminal defendant should be able to advance any evidence that, first, rationally tends to disprove his guilt, and second, passes the FRE 403 balancing test. To garner an acquittal, the defendant need only plant in the jury’s mind a reasonable doubt." (Ibid.; United States v. Robinson (2nd Cir.1976) 544 F2d 110, 112-13 [similar result; no analysis under FRE 404(b)]; United States v. Armstrong (9th Cir.1980) 621 F2d 951, 953 [same]; [NF] U.S. v. Vallejo (9th Cir. 1/16/2001) as amended 4/23/2001, 246 F3d 1150, 2001U.S. App. LEXIS 7367 [trial court erred in refusing to permit defendant to present evidence that the prior owner of the car had been arrested at the same border crossing, carrying a similar amount of marijuana concealed in a similar manner in a different car, and that the prior owner’s arrest and transfer of the car from his name was very recent permitting the inference that the prior owner had concealed the marijuana and then disposed of the car after his arrest]; Rivera v. State (FL 1990) 561 So2d 536, 539; Commonwealth v. Nicholas (MA 1983) 445 NE2d 634, 636 [defendant may introduce evidence of third-party crime not too remote in time or too weak in probative force, which is closely related to the facts of the charged crime]; New Jersey v. Garfole (NJ 1978) 388 A2d 587, 591; Commonwealth v. Thompson (PA 2001) 779 A2d 1195, 1201 [defendant should have been allowed to present the driver's record, including the pending charge, to the jury]; but see United States v. Spencer (9th Cir.1992) 1 F3d 742, 745 [holding that reverse FRE 404(b) evidence inadmissible because crime was not distinctive].)

SAMPLE INSTRUCTION # 1:

    You have heard evidence of [an] uncharged act[s] [allegedly] committed by _________________ (name of third party). This uncharged act evidence is to be considered in deciding whether _________________ (name of third party) had the state of mind or intent necessary to commit the crime charged against the defendant] [and/or] [whether _________________ (name of third party) had a motive or the opportunity to commit the act[s] charged against the defendant] [and/or] [whether _________________ (name of third party) acted according to plan or in preparation for commission of a crime] [and/or] [whether the identity of _________________ (name of third party) as the perpetrator of the crime currently charged against the defendant has been established].

[Source: NCJIC.]

SAMPLE INSTRUCTION # 2:

    You have heard evidence of [an] uncharged act[s] [allegedly] committed by _________________ (name of third party) which may be similar to those now charged against the defendant. This uncharged act evidence is to be considered in deciding whether _________________ (name of third party) committed the crime with which the defendant is now charged.

    Please remember, however, that the defendant is not required to prove that _________ (name of third party) committed either the charged or uncharged offenses. If you have a reasonable doubt as to the defendant's guilt of the charged crime, you must give the defendant the benefit of that doubt and find the defendant not guilty.

[Source: NCJIC.]

SAMPLE INSTRUCTION # 3:

    You have heard evidence that _________________ (name of third party) previously committed an act similar to the one charged in this case. In deciding whether the prosecution has proven the defendant guilty beyond a reasonable doubt consider the evidence of this alleged uncharged similar act together with all the other evidence. If you have a reasonable doubt that the defendant is the person who committed the charged offense, you must acquit the defendant.

[Source: NCJIC.]

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