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26.5 Uncharged Acts To Prove Issues Other Than Propensity

    26.5.1 Uncharged Acts: Miscellaneous Issues

    26.5.1.1 Uncharged Acts: Avoiding The Term "Offense" Or "Crime"
    26.5.1.2 Uncharged Acts Or Crimes: Sources Of Prejudice
    26.5.1.3 Using Uncharged Acts In Support Of Third Party Defense Theory
    26.5.1.4 Uncharged Acts: Federal Circuit Model Instructions And Notes

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RATIONALE: When uncharged acts are offered to prove issues other than propensity the status of the uncharged act as a crime or offense should not be relevant. It is the nature of the conduct itself which provides the relevance. On the other hand, to characterize the conduct as a crime may increase the risk the jury will consider the evidence for an improper purpose.

    Hence, even if the prior acts did constitute a crime or offense terms such as "transaction," "act" or "conduct" should be used, rather than "offense," "crime" or "bad act."

POINTS AND AUTHORITIES: FRE 404(b) permits evidence of a defendant's prior crimes, wrongs, or other "bad acts" to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," but only if (1) relevant to an issue other than character; (2) necessary; and (3) reliable. (See e.g., U.S. v. Bailey (4th Cir. 1993) 990 F2d 119, 122.)

    However, the relevance of prior acts offered to prove specific issues under evidentiary rules, such as FRE 404(b), does not depend on whether or not the prior act is a crime. (See U.S. v. Molinaro (9th Cir. 1993) 11 F3d 853, 863.) Nor is the jury required to find that the conduct amounted to a crime. (Compare  FORECITE National™ 26.5.2.2 [Uncharged Acts: Jury Must First Find That Defendant Committed The Prior Bad Act Or Crime].)  Hence, to label the act as a crime needlessly injects prejudice into the instruction.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3; 10.3].

See Manual On Recurring Problems In Criminal Trials [Receipt Of Expert Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].

See also Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 Uncharged Acts: Federal Circuit Model Instructions And Notes].

    You [are about to hear] [have heard] evidence that the defendant (describe evidence the jury is about to hear). You may not use this evidence to decide whether the defendant carried out the acts involved in the crime charged in the indictment. However, if you are convinced beyond a reasonable doubt, based on other evidence introduced, that the defendant did carry out the acts involved in the crime charged in the indictment, then you may use this evidence to decide (describe purpose under 404(b) for which evidence has been admitted.)

    [Remember, even if you find that the defendant may have committed [a] similar [act] [acts] in the past, this is not evidence that [he] [she] committed such an act in this case. You may not convict a person simply because you believe [he] [she] may have committed similar acts in the past. The defendant is on trial only for the crime[s] charged, and you may consider the evidence of prior acts only on the issue of (state proper purpose under 404(b), e.g., intent, knowledge, motive.)]

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.08 [Defendant's Prior Similar Acts (Where Introduced to Prove an Issue Other Than Identity) (FRE 404(b))] (2000).]

    You [are about to hear] [have heard] evidence that the defendant previously committed [an act] [acts] similar to [the one] [those] charged in this case. You may use this evidence to help you decide [manner in which the evidence will be used to prove identity - e.g., whether the similarity between the acts previously committed and the one[s] charged in this case suggests that the same person committed all of them].1

    Remember, however, that the mere fact that the defendant may have committed [a similar act] [similar acts] in the past is not evidence that [he] [she] committed such [an act] [acts] in this case. The defendant is on trial for the crime[s] charged and for [that] [those] crime[s] alone. You may not convict a person simply because you believe [he] [she] may have committed some act[s], even bad act[s], in the past.

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.09 [Defendant’s Prior Similar Acts (Where Introduced to Prove Identity) (FRE 404(b))] (2000).]

    You are about to hear testimony that the defendant previously committed other [crimes] [wrongs] [acts] not charged here. I instruct you that the testimony is being admitted only for the limited purpose of being considered by you on the question of defendant's [intent] [motive] [opportunity] [preparation] [plan] [knowledge] [identity] [absence of mistake] [absence of accident] and for no other purpose.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.10 [Other Crimes, Wrongs or Acts of Defendant] (2000).]

    You have heard evidence of acts of the defendant which may be similar to those charged in the indictment, but which were committed on other occasions. You must not consider any of this evidence in deciding if the defendant committed the acts charged in the indictment. However, you may consider this evidence for other, very limited, purposes.

    If you find beyond a reasonable doubt from other evidence in this case that the defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to determine:

    Whether the defendant had the state of mind or intent necessary to commit the crime charged in the indictment;

    or

    Whether the defendant had a motive or the opportunity to commit the acts charged in the indictment;

    or

    Whether the defendant acted according to a plan or in preparation for commission of a crime;

    or

    Whether the defendant committed the acts for which he is on trial by accident or mistake.

    These are the limited purposes for which any evidence of other similar acts may be considered.

[5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.30 [Similar Acts] (2001).]

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PRACTICE NOTE: There are at least three types of prejudice that might result from the use of other crimes as evidence:

    "First, a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed. Thus, in several ways the defendant is prejudiced by such evidence." (State v. Bly (KS 1974) 523 P2d 397, 403.)

See  Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts].

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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    26.5.1.3    Using Uncharged Acts In Support Of Third Party Defense Theory

See generally, FORECITE National™ 26.5.1.4 [Uncharged Acts: Federal Circuit Model Instructions And Notes].

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    26.5.1.4    Uncharged Acts: Federal Circuit Model Instructions And Notes 

See 1st Circuit Pattern Jury Instructions - Criminal 2.03.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.30.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.13.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.18.

See also 7th Circuit Federal Jury Instructions - Criminal 3.04.

See also 8th Circuit Model Jury Instructions - Criminal 1.03.

See also 8th Circuit Model Jury Instructions - Criminal 2.08.

See also 8th Circuit Model Jury Instructions - Criminal 2.09.

See also 8th Circuit Model Jury Instructions - Criminal 3.03.

See also 9th Circuit Model Jury Instructions - Criminal 1.5.

See also 9th Circuit Model Jury Instructions - Criminal 2.10.

See also 9th Circuit Model Jury Instructions - Criminal 3.10.

See also 9th Circuit Model Jury Instructions - Criminal 3.11.

See also 9th Circuit Model Jury Instructions - Criminal 4.3.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 4.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 4.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 18.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 50.