Also known as:other crime · prior bad acts · 404(b) evidence
Written by attorneys · grounded in primary & secondary sources — see below
An evidentiary prohibition barring the use of a person's other crimes, wrongs, or acts to prove character in order to show that the person acted in accordance with that character on a particular occasion. The prohibition does not apply when the evidence is offered for a non-character purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
Sources & Authorities
How it applies
Common Examples
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Prior Nonprofit Diversion Offered for Intent
Odette Orozco served as executive director of an environmental charity. Prosecutors charged her with embezzling restricted donations. Two years earlier she had submitted invoices from a company she controlled to a youth sports nonprofit and received board-approved payments later questioned by auditors. The prosecution offered the earlier invoices to show that Orozco knew how to extract funds from charitable accounts and acted with the same intent in the current case. The court admitted the evidence after finding it relevant to intent rather than mere propensity.
Prior Fraud Scheme Offered for Knowledge
Paul Prentice was charged with wire fraud in a real-estate scam. Prosecutors sought to introduce evidence that three years earlier he had used false appraisals to obtain loans on commercial property. The defense objected that the prior acts merely showed bad character. The court admitted the evidence after the prosecution articulated a non-character purpose of proving knowledge of appraisal requirements.
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Cases
Federal Rules
Uniform Acts
Model Codes
Restatements
Course Outlines
Earlier Drug Sales Offered for Intent
Dana Delgado faced charges of distributing methamphetamine. The government offered testimony that two years before she had sold the same drug to an undercover officer on three occasions. Delgado argued the evidence was propensity proof. The court allowed it after finding the prior sales relevant to show intent to distribute rather than personal use.
Prior Identity Theft Offered for Plan
Ian Ingram was prosecuted for using stolen credit cards to buy electronics. Prosecutors introduced evidence that six months earlier he had obtained personal data from a different retailer and made similar purchases. The defense moved to exclude the evidence as character attack. The court admitted it to show a common plan for acquiring and monetizing stolen identities.
Previous Burglary Tools Offered for Preparation
Karen Kline was charged with burglary of a jewelry store. The state offered evidence that two weeks before the charged offense she had purchased lock-picking tools and a pry bar later found at the scene. Kline contended the purchase merely proved criminal propensity. The court admitted the evidence to prove preparation for the burglary.
Prior False Statements Offered for Absence of Mistake
Leo Lang was tried for making false statements on a loan application. The prosecution introduced evidence that he had made nearly identical misrepresentations on two earlier applications that were denied. Lang claimed any errors were innocent mistakes. The court admitted the evidence to show absence of mistake.
Common questions
Frequently Asked
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When may evidence of other crimes be admitted despite the general prohibition?+
Evidence of other crimes may be admitted when offered for a non-character purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The prosecution must articulate a permissible purpose and the evidence must satisfy Rule 403 balancing.
Supporting sources
Does a prior acquittal bar admission of the underlying conduct as other-crimes evidence?+
No. An acquittal does not preclude admission of the conduct if the evidence is offered for a proper non-character purpose and the jury could reasonably find the act occurred under the conditional-relevance standard of Rule 104(b).
Supporting sources
Must the prosecution give pretrial notice before introducing other-crimes evidence in a criminal case?+
Yes. In a criminal case the prosecutor must provide reasonable notice of the general nature of any other-crimes evidence it intends to offer at trial so the defendant has an opportunity to object.
Supporting sources
How does the other-crimes rule interact with impeachment of a testifying defendant?+
A testifying defendant may be impeached with prior convictions under Rules 608 and 609 even though the same evidence would be inadmissible under Rule 404(b) to prove character. The rule does not bar use of convictions for credibility purposes when the defendant takes the stand.
Supporting sources
530 U.S. 466 (2000)Evidence
…guard, a teller or a customer, at night (or at noon), for a bad (or arguably less bad) motive, in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers, for the first (or fourth) time that day, while sober (or under the influence of drugs or alcohol), and so forth."…