Justia Lawyer Rating
best Lawyer
Super Lawyer - Top 100
Super Lawyer - Top 100
best Lawyers
Avvo Rating 10.0
AV Preeminent
The National Trial Lawyers
The best Lawyers in America
Advocates for Justice
Business North Carolina Legal Elite - 2023
DUI Defense
*For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Evidence Outline - Professor Tilly - Campbell Law - Part 14

By Miller Moreau
Professor Tilly - 2020

Download the PDF version of this outline

< Part 13 | Part 15 >

FRE 404(b). Crimes, Wrongs, Other Acts

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 acted in accordance with the character.

2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

  1. provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
  2. do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.

General rule is to exclude evidence of crime, wrong, or other act for proving character

  • But- if offered for different purpose → may be ok
    • Depends on how probative it is towards other purpose & how prejudicial that is

Applies towards ALL acts, good and bad

  • D can use it as well

Non-exhaustive list but pretty much what is used

Doesn’t necessarily have to be one of the party’s actions to come in here

  • I.E. – A slept with B back in the day. B later marries C, and C kills A. In C’s murder trial, prosecutor can introduce evidence of B and A sleeping together

NOT necessarily dealing with arrests/convictions, this covers other crimes/wrongs/acts that are not part of the case at hand

  • BUT- act can even be one that took place after the event being tried
  • Wrongful act doesn’t even have to have been charged
    • Disposition of previous act really just goes towards probative value
    • Previous act can still be conviction, just offering for different reason than impeachment (609)

“Status” can constitute an act

  • I.E. – drug addiction, gang membership

If Criminal case → prosecutor must give notice

M.O. is “signature” going towards identity

  • Requires a showing that the crime or its perpetrator and the other crime share distinctive characteristics that evinces a signature quality
    • Still only applies when identity is in issue

Intent is often a big one that gets these cases in

  • Often overlaps with knowledge or lack of mistake
    • I.E. – “oh i didn’t mean to push my wife down the staircase”, but your previous wife also died from getting pushed down the staircase → it’s coming in

Motive is big too → often probative of accused’s guilt, obviously doesn’t have to be an element

  • I.E. – U.S. v. Moon: D charged with firearm possession Court admitted evidence of his previous drug dealing to prove his motive to possess the gun found in his room

LaCompte Rd. 1 , D on trial for molestation, pros. failed to get evidence under 414 so tries under this rule (notice req. Is just “reasonable time” for this rule, 414 is 15 days). Previous victim testified that D molested her and had played “hide and seek” to do it, P offers as “common plan”

  • Court: no, evidence only goes towards deviant sexual behavior, not relevant towards plan/purpose/M.O
    • Not plan b/c was way beforehand and not relevant towards this case
  • Identity was not at issue, undisputed that D was only adult present at the time

LaCompte Rd. 2 , prosecutor gives notice in better time frame to get in through 414 → appellate court reverses 403 exclusion

  • Shows courts should rarely exclude such evidence based on congress’ intent to lock these fuckers up

Huddleston v. US, standard of whether acts actually happened: judge only has to find that the jury could reasonably conclude by a preponderance of the evidence that the defendant committed or is responsible for the other crime, wrong, or act

  • I.E. – if D was convicted of previous crime → pretty conclusive
  • But even if acquitted → does not bar its admission
    • Innocent until proven guilty?

US v. Mound, the statute is constitutional

  • For probative value: look to how specific the acts are, similarities, timing, reliability, etc.
Analytical Framework
  1. Is the evidence offered for a proper non-character purpose?
  2. Is the evidence relevant when offered for that purpose?
  3. Has the proponent offered evidence sufficient to support a finding by a rational juror that defendant committed the 404(b) act?
  4. Does the danger of unfair prejudice substantially outweigh the probative value of the evidence when offered for that purpose?
  5. Can the jury understand and apply an instruction to limit their use of the evidence to that purpose?

FRE 406. Habit; Routine Practices. Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

  • “Habit” definition: “specific, repeated responses to a particular situation or stimulus.”
    • Much more specific than character evidence
    • Standard is “always” or “almost always”,
    • Situation/stimulus must be SPECIFIC
      • I.E. – i eat during evenings → not specific
        • I have Taco Tuesday at 7 every week → habit
  • Allowed regardless of corroboration
    • Able to prove in any way - specific instances, reputation, or opinion
  • Typically, morally neutral → lesser chance it’s unfairly prejudicial as compared to propensity evidence
    • Higher probative value typically admitted.
    • Admissible to prove conforming conduct
  • Unique admissibility reasons
  • Habit examples
    • Driver’s habit of wearing a seat belt
    • Mechanic’s habit of drinking on the job
    • Dude’s habit of invariably acting with extreme violence to an contact with police officers
  • Routine practice examples
    • Insurance company’s agents routinely waived written policy conditions
    • Military base’s practice of using base facilities to make authorized retirement gifts
    • BUT NOT - general business customs or industry standards

A few weeks after undergoing dental surgery, Katie Meyer learned she had suffered nerve damage in her tongue and gums. She sued the dental clinic, claiming the dentist who performed the surgery failed to warn her that the procedure could result in nerve damage. The dental surgeon, Kent Askins, could not remember the exact conversation he had with Meyer, but he testified that his standard procedure with any patient undergoing surgery was to advise the patient of all risks associated with the surgery entailed.

  • This is fine- can even introduce evidence of one’s own habit without corroboration
    • Credibility is for jury to decide
Examining Witnesses: Attacking & Supporting Credibility Witness Specific Rules
  • FRE 615 – Separation of Witnesses
  • FRE 611 – Mode & Order of Examining Witnesses
  • FRE 607 – Who May Impeach a Witness
  • FRE 608 – Impeaching a Witness’s Character for Truthfulness
  • FRE 609 – Impeachment by Prior Conviction
  • FRE 801(d)(1) – Prior Consistent & Inconsistent Statements
  • FRE 613 – Witness’s Prior Statement

Three ways to impeach witness character for truthfulness

  1. 608(a) Reputation & Opinion
  2. 608(b) Specific Instances of Conduct
  3. 609 Criminal Convictions

Recap: 404(a)(3) Character Evidence: Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609

Related Topics

The Charlotte lawyers at Powers Law Firm PA are dedicated to compassionate legal representation, predicated on superlative knowledge, trial skills, and conscientious advocacy.

The gift of a legal education extends beyond a fulfilling way to earn a living. Omni autem cui multum datum.

Bill Powers - Bill@CarolinaAttorneys.com

Carolina Law Blog / Awards and Certifications

Client Reviews
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two year stretch together. I went to any lengths for my case because he won my trust almost immediately... J.R.
My daughter had a second DUI and when it all seemed hopeless, Bill was able to get the charges dropped. This is a man who is extremely knowledgeable, yet still keeps his integrity which was impressive to me. He handles himself with dignity. If you hire him, you will have the best of the best, along with his expansive intellect and wisdom about the law. Lisa
Bill Powers’ staff has handled several traffic citations for me over the years, and they exceeded my expectations each and every time. Would highly recommend anyone faced with a traffic citation or court case contact his office and they will handle it from there. M.C.
Bill and his staff are flat out great. I (unfortunately) was a repeat customer after a string of tickets. These guys not only took care of the initial ticket for me, but went the extra mile and reduced my problems from 3 to just 1 (very minor one) on the same day I called back! I would recommend them to anyone. A.R.