404(b)-403-Oh, never mind-it comes in

Michael H. Graham (University of Miami – School of Law) has posted two articles on "other crimes" evidence under Federal Rule of Evidence 404(b) on SSRN. The first is Other Crimes, Wrongs, or Culpable Acts, Fed.R.Evid. 404(B): ‘Defining’ a New Paradigm (Criminal Law Bulletin, Vol. 47, p. 998, 2011). Here is the abstract:

Commentators addressing the incredible theoretical and functional difficulties surrounding the long accepted general principal that while other crimes, wrongs, or culpable acts are not admissible to prove the character of a person in order to show action in conformity therewith, such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” Fed.R.Evid. 404(b), have more or less thrown in the towel reverting to the bromide that fundamentally it all is a question of proper application of discretionary balancing, basically some version or another of Fed.R.Evid. 403. Such an approach is recommended by those adopting a totally theoretical approach to the enterprise as well not surprisingly also by the two commentators, Imwinkelried and Leonard, who have authored treatises devoted solely to the subject.

The second is Reconciling Inextricably Intertwined/Intricately Related Other Crimes, Wrongs, or Culpable Acts Evidence with Fed.R.Evid. 404(B): Don’t Throw the Baby Out With the Bath Water (Criminal Law Bulletin, Vol. 47, p. 1258, 2011). Here is the abstract:

The concept of “inextricably intertwined/intricately related” has been given such universal recognition in the law of evidence for good reason. Other crimes, wrongs, or culpable acts sufficiently connected to the criminal event forming the basis of the prosecution should be admissible in evidence without the requirement of notice, enhanced burden of proof, limiting instructions, along with a real life realistic application of Rule 403. The prosecution should be able to present a cohesive, complete and comprehensible story of the events including crimes, wrongs, or acts other than those charged where closely linked in point of time and space to the criminal event free from any and all of the foregoing requirements. Retention of the concept of “inextricably intertwined/intricately related” maintains the proper balance with respect to disclosure between prosecution and defense.

h/t CrimProfBlog