MRE 404(b)

Federal Evidence Review brings to us a useful argument about the “notorious” slippery slope between propensity evidence and evidence admitted under Mil. R. Evid. 404(b).  I’ve noted elsewhere the tendency of prosecutors of making talismanic assertions that, “it’s evidence of intent, motive, modus, your honor.”

The defense and judges need to hold the prosecution to establishing a record of why the evidence is admissible.

The interpretation and application of FRE 404(b) can be notorious – so much so that some courts have suggested that the rule established a "slippery boundary" between properly admitting evidence of a defendant’s intent and improperly admitting evidence of a defendant’s propensity. In a recent case, the Seventh Circuit briefly explored where a court had slipped beyond the boundary, although the Circuit concluded the error was harmless.

As in the case here, intent was not an issue – the offense charged was a general intent crime.

In distribution of crack cocaine trial, admission of defendant’s other drug dealing (e.g., occurring before charged activity, "front[ing]" informant cocaine; offering informant "extra cocaine for [his] money", and recording of defendant discussing purchase of crack) was erroneous under FRE 404(b) as proof of intent; this evidence was cumulative because the charged crime was a general intent crime and the defendant never put his intent at issue; however, any error in admitting the other act evidence was harmless, in United States v. Powell, __ F.3d __ (7th Cir. July 13, 2011) (No. 10–2535).

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