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Congress carefully designed the Federal Rules of Evidence to be expansive and inclusionary. Tome v. United States, 513 U.S. 150 (1995). All relevant evidence is admissible, except as otherwise provided by the Rules of Evidence, the Constitution of the United States, or an act of Congress. Rule 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Rule 401 (emphasis supplied). Evidence, though relevant, "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403 (emphasis supplied).
Rule 404(b) is a specialized rule of relevancy. It 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."
My purpose here is to give an overview of Rule 404(b), describe how it is being administered by the federal courts, and offer some strategies that can be used to admit or exclude "other act" evidence. First, some history and general principles: Rule 404(b) is the most litigated of all the Federal Rules of Evidence, accounting for more published opinions than any other provision. All 50 states have adopted a Rule 404(b) counterpart. Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence § 404(08) (McLaughlin ed. 1996). Perhaps because the propensity prohibition has its roots so deeply embedded in the soil of criminal cases, the "other acts" envisioned by Rule 404(b) are often inaccurately referred to as "prior bad acts" or "other crime evidence." The rule is not limited either to acts that are "bad" or criminal, United States v. Curtin, 489 F.3d 935, 943 n.3 (9th Cir. 2007) (en banc), or to acts that are prior in time to the events under consideration in the case. United States v. Perry, 438 F.3d 642, 647 (6th Cir. 2006); Ansel...