Criminal Law: Admissibility of Uncharged Misconduct Evidence

December 18, 2011

Two what?

Author’s note: I refer to the Federal Rules of Evidence for the sake of convenience because most states have adopted them verbatim, or with only slight changes. They have even retained the same numbering system for ease of reference.

In criminal trials, prosecutors often seek to introduce evidence that a defendant has committed misconduct other than that charged in the information or indictment.


Answer: Since prosecutors are required to overcome the presumption of innocence by proof beyond a reasonable doubt, they fear they will not be able to convict a defendant without relying on uncharged misconduct evidence, especially in weak cases.

Rule 401 of the Federal Rules of Evidence (FRE 401) provides:

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

FRE 402 provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

No one disputes that, under some circumstances, such evidence is relevant, for example, to show a defendant’s state of mind where his state of mind is an issue in a case.

Let us say that a 31-year-old defendant is charged with statutory rape in a hypothetical jurisdiction where the crime prohibits a person over the age of 25 having sex with a person under the age of 16. He claims that he did not know and had no reason to know that she was underage because she told him she was 19 and she appeared to be that old. Thus, the issue is whether the defendant knew she was under the age of 16 .

Let us further say that the prosecutor can prove that the alleged victim met the defendant when she approached him in a parking lot outside a convenience store and asked him to buy her a pack of cigarettes because she was not old enough to buy them. He agreed, and after he gave her the cigarettes, they spent some time together that ended several hours later when her father discovered them in flagrante delicto while parked outside the family house. A person must be 16 in this jurisdiction to buy cigarettes legally and it is a misdemeanor to purchase cigarettes for a person under the age of 16.

Should the prosecutor be permitted to introduce evidence about the cigarette purchase?

Answer: Yes, the incident is relevant under FRE 402 because it establishes that he knew she was under the age of 16, and relevant evidence is admissible under FRE 401.

What about other instances of uncharged misconduct? Are there other rules that apply?

Answer: Yes, FRE 403 and 404.

FRE 403 provides:

Although relevant, evidence 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.

Would the cigarette purchase evidence be inadmissible under FRE 403?

Answer: No, because the probative value of the evidence to prove that he knew she was under the age of 16 is high and the danger of unfair prejudice is low. There is little danger that the evidence will confuse the issues, mislead the jury, or waste time.

Note that any analysis under FRE 403 requires a weighing of probative value versus prejudicial effect.

FRE 404 provides:

(a.) Character evidence generally.

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1.) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution.

(2.) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

(3.) Character of witness – Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b.) Other crimes, wrongs, or acts.

Evidence 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, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

(emphasis supplied)

FRE 404(a) states the general rule, which prohibits the use of character evidence (e.g., the defendant is a liar) to prove that the defendant lied on a particular occasion relevant to the case. I believe this rule makes sense because no one lies all the time with the possible exception of the obamanable one, of course. Such evidence would invite the jury to basically presume the defendant lied at the time in question, rather than basing its decision on the evidence, and that would violate the presumption of innocence.

FRE 404(b) begins with a general prohibition against the use of uncharged misconduct. The second sentence sets forth the exceptions.

Uncharged misconduct is admissible to prove:

1. motive,

2. opportunity,

3. intent,

4. preparation,

5. plan

6. knowledge,

7. identity, or

8. absence of mistake or accident.

In our hypothetical, the defendant’s uncharged misconduct (i.e., purchasing cigarettes for the underage girl) would be admissible to show knowledge (i.e., that he knew she was less than 16-years-old) and absence of mistake (i.e., that he did not mistake her to be 16-years-old, or older).

As before, the judge would have to balance the probative value of the evidence against its potential prejudicial effect pursuant to FRE 403, but we all know how that will turn out.

Whether any one or more of these factors will be present in any given case depends on what the prosecution must prove to convict a defendant and whether the prosecutor knows about and can prove prior uncharged misconduct.

Note: FRE 404 applies when a prosecutor seeks to introduce uncharged misconduct evidence during its case-in-chief (i.e., when the prosecution is presenting its case). FRE 609, which governs the admissibility of a defendant’s prior conviction, applies during the defense case after the prosecution rests, if the defendant testifies (i.e., if the defendant testifies, the prosecution gets to introduce the prior conviction to impeach or undermine the defendant’s credibility. The prosecution cannot introduce the prior conviction, if the defendant does not testify). Prior felony convictions are admissible, if less than 10-years-old, subject to the judge weighing the probative value versus the potential prejudice to the defendant, unless the crime involves dishonesty or false statement. Even misdemeanors that involve dishonesty or false statement are admissible under this rule.

Some examples:

1. Prior drug use should be excluded in a drug case since it merely shows propensity to use drugs, which has low probative value and high prejudicial value and it does not fall into any of the 8 exceptions listed in FRE 404(b).

2. A prior felony drug conviction should not be admissible as impeachment, if the defendant testifies, because its potential prejudicial value outweigh its probative value, However, some jurisdictions permit it on the ground that a drug conviction involves dishonesty or false statement.

3. So-called signature crimes are admissible under FRE 404(b) to prove identity of the perpetrator.

Conclusion: The admissibility of uncharged misconduct evidence is one of the most complicated and litigious issues in criminal law. This essay is a brief overview of the subject to explain what it is about in laymen’s terms. Should you or someone you know be involved in a case in which this issue comes up, educate yourself with this article and use it to intelligently discuss the issue with your lawyer. As always, rely on your lawyer. If you do not trust your lawyer, hire another one.

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