In prosecution for first-degree murder and for using a firearm in the commission of a crime of violence, testimony that defendant threatened two percipient witnesses at the scene of the crime were admissible under FRE 404(b) to show consciousness of guilt, in United States v. Begay, _ F.3d _ (9th Cir. June 1, 2009) (No. 07-10487)
Other act evidence under FRE 404(b) is admissible for other than propensity purposes, such as for showing a defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This list is not exhaustive and occasionally other act evidence is admissible for other purposes, such as to show a defendant’s consciousness of guilt on the charged crime (emphasis added).
Don’t forget that in the right case the defense should be introducing, arguing for, and asking for instructions on consciousness of innocence. As of yet no military or federal court accepts this theory when it comes to instructions. However, there are plenty of state court rulings on “consciousness of innocence.”