Also known as:lack of mistakes · absence of mistake
Written by attorneys · grounded in primary & secondary sources — see below
A permissible non-character purpose for admitting evidence of other crimes, wrongs, or acts. The purpose shows that the defendant possessed the requisite knowledge or intent and did not act through innocent error or accident.
Sources & Authorities
How it applies
Common Examples
4
Prior Invoice Scheme Shows Knowledge
Lena Lawson, executive director of an environmental charity, faces embezzlement charges for diverting restricted donations. Two years earlier she submitted invoices for nonexistent consulting services at a youth sports nonprofit and obtained board approval for the payments. The prosecution offers the earlier invoices to demonstrate that Lawson knew how to extract funds through false documentation and did not mistakenly believe the current transfers were authorized.
Prior Gun Purchases Negate Mistake Claim
Luke Latham is prosecuted for possessing a firearm as a felon. The government introduces evidence that Latham bought fifteen other firearms from the same pawn shop in the preceding fifteen months. The evidence is offered to show that Latham knew the items were firearms and did not mistakenly believe he was purchasing something else.
Select any source to read its text and confirm it supports the definition.
Cases
Federal Rules
Course Outlines
Prior Gun Incidents Show Knowledge
Lance Lee stands trial for possessing a recovered firearm. The prosecution offers testimony from officers who twice caught Lee with handguns in the months before the charged offense. The evidence is admitted solely to prove Lee knew the recovered item was a firearm and did not act under a mistaken belief about its nature.
United States v. Stevens559 U.S. 460 (2010)
Stipulation Avoids Detailed Prior Act
Liam Larson, charged as a felon in possession of a firearm, offers to stipulate to his prior felony status. The government seeks to introduce the full judgment and news articles describing a prior cyberattack. The court requires acceptance of the stipulation because the inflammatory details add nothing to the absence-of-mistake issue once status is conceded.
Old Chief v. United States (II)519 U.S. 172 (1997)
Common questions
Frequently Asked
3
What non-character purpose does lack of mistake serve under Rule 404(b)?+
Lack of mistake permits other-acts evidence to show the defendant possessed knowledge or intent rather than acting through innocent error. The prosecution must articulate the specific non-propensity theory and satisfy Rule 403 balancing.
Supporting sources
Does the court need to find the prior act proved by a preponderance before admitting it for lack of mistake?+
No. The trial court applies the Rule 104(b) conditional-relevance standard. The evidence is admissible if a jury could reasonably find the defendant committed the prior act, provided the probative value on the non-propensity issue is not substantially outweighed by unfair prejudice.
Supporting sources
How does lack of mistake differ from a propensity argument?+
Propensity reasoning infers that because the defendant committed a similar act before, the defendant must have a bad character and acted in conformity with it. Lack of mistake instead uses the prior act to show the defendant knew the conduct was wrongful or knew the nature of the item, negating an innocent-mistake defense.
Supporting sources
519 U.S. 172 (1997)Evidence
…acts on some issue other than status ( i. e. , to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," Fed. Rule Evid. 404(b)), Rule 404(b) guarantees the opportunity to seek its admission. Nor can it be argued that the events behind the prior conviction are proper nourishment…