MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part V. Evidence - Part V(A) 8. Admissibility: "Other Crimes" Evidence

        Part V(A) 8    "Other Crimes" Evidence: General Principles

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 8    Admissibility: "Other Crimes" Evidence: General Principles

CAVEAT: See Publication Preface and Caveats.

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25.20 Uncharged Acts To Prove Propensity (FRE 413-415)

26.5 Uncharged Acts To Prove Issues Other Than Propensity

FRE 404(b) provides that

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution ... shall provide notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The rule does not extend to evidence of acts that are "intrinsic" to the charged offense.

United States v. Williams, 900 F.2d 823 (5th Cir. 1990)
United States v. Chin, 83 F.3d 83 (4th Cir. 1996)

The court need not make a preliminary finding that the government has proved the "other crime" or "similar act" by a preponderance of the evidence before it submits the evidence to the jury. Instead, such evidence should be admitted if there is sufficient evidence to sustain a finding by the jury that the defendant committed the other crime or similar act.

Huddleston v. United States, 485 U.S. 681 (1988)

The threshold inquiry a court must make before admitting other-crimes evidence under FRE 404(b) is whether the evidence is relevant and probative of a material issue other than character.

Huddleston v. United States, 485 U.S. 681 (1988)

In the FRE 404(b) context, other-crimes evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.

Huddleston v. United States, 485 U.S. 681 (1988)
Dowling v. United States, 493 U.S. 342 (1990)

Questions of relevance conditioned on proof of a fact are dealt with under FRE 404(b): "In determining whether the government has introduced sufficient evidence to meet FRE 404(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 the evidence in the case and decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence."

Huddleston v. United States, 485 U.S. 681 (1988)
United States v. Sampson, 980 F.2d 883 (3d Cir. 1992)
United States v. Clarke, 24 F.3d 257 (D.C. Cir. 1994)
But see FRE 413 and 414 (evidence of a defendant's commission of similar crimes of sexual assault and child molestation is admissible and may be considered for its bearing on any matter to which such evidence is relevant)