A Return to the Scene of the Crime


Charge: theft of valuable documents, coins, and case from the heavy metal safe in Attorney A's office on June 1. Modus operandi: opening the combination lock and absconding with the contents.

At D's trial the state offers to prove that on May 1, D broke into Attorney A's office, opened the safe, and stole some bonds from the safe. D objects on the basis of the propensity rule.

What ruling and why? If D's objection is overruled, what type of limiting charge should D request?


The first clause of Rule 404(a) contains the basic rule excluding evidence of character used as circumstantial proof of action in conformity therewith. Note carefully the limited scope of this exclusion. It recites the traditional propensity rule as applied by Chief Justice Cardozo in Zackowitz, but, as Justice Pound's dissent shows, the same evidence that one judge believes is barred by the propensity rule another judge may believe is relevant for a nonpropensity, admissible purpose. To understand why this is so it is important to understand the particular chain of inferences that is barred by the propensity rule so that one can then understand the permitted use of evidence that looks, sounds, and feels like character evidence but is admissible.

Evidence is not barred by Rule 404(a)'s propensity rule if the evidence is relevant to a material issue in a way that does not require an inferential connection through character (the middle step in the example above). In addition to restating the basic propensity rule of Rule 404(a), Rule 404(b) gives some generic examples of how evidence that is similar to the proof barred by Rule 404(a) when used to link up the impermissible chain of inferences through character might be admissible when used in a different way--that is, not used to prove a trait of character and, from that trait, an issue in the case. To take Problem IV-1 as an example, the evidence of the prior crime is directly relevant to show the defendant's knowledge--one of the possibly permissible uses of prior crimes, wrongs, or acts listed in 404(b)--of the location and the combination of the safe, and perhaps also some expectation that there might be some valuable booty in the safe worth going after. The evidence may also show something about the defendant's character, but to make use of the evidence to prove knowledge, is it necessary to make the inference about the defendant's character?

However, it is not quite right to say that the evidence of the prior theft is made admissible under Rule 404(b). As a matter of analysis, Rule 404(b) is superfluous. The kinds of evidence it describes, when used for the purposes it describes, if relevant under Rule 401, would be admissible under Rule 402 unless excluded under some specific rule of exclusion or in the court's discretion under Rule 403's balancing test. Actually, Rule 404(a) does all the exclusionary work of the propensity rule when character is used circumstantially to prove action in conformity therewith, and 404(b) adds nothing except clarification of when the propensity rule does not apply because propensity is not being proved (some clarification!).

In fact, Rule 404(b) often causes confusion because its examples of permitted use of character-type evidence are sometimes mistaken as an exhaustive list of when such evidence is permitted. Notice the vital words, "other purposes, such as" in the second sentence of Rule 404(b). These words cover a universe of proof and permissible purposes as compared to the limited scope of Rule 404(a)'s exclusion.

We have not dealt adequately yet with what happens when proof of other crimes, acts, or wrongs is offered for some purpose other than proving action in conformity therewith (propensity), such as knowledge of the combination of a safe from which money is stolen, but the evidence, if believed, might also say something about the person's thieving character (propensity). A skeptical mind would recognize that we dismissed this problem too superficially. Indeed, courts frequently must struggle with this problem, and it is not always easy to resolve. Professor Imwinkelried reports that Rule 404(a) has generated more published opinions than any other subsection of the Federal Rules. The Use of Evidence of an Accused's Uncharged Misconduct to Prove Mens Rea, 51 Ohio St. L.J. 575, 576 (1990). Sound resolution of this problem requires a clear understanding of the scope and purpose of Rules 401, 402, and 403, Rule 404's subsections, and Rule 105 (the rule of limited admissibility).

As with most complex problems, it helps to have a theory. Starting with Rule 404(a), the applicable specific rule of exclusion, the chain of inferences that is prohibited can be diagrammed as follows:

However, the chain of inferences using the same or similar proof and recited as examples of possibly permissible proof in Rule 404(b), and that is not barred by Rule 404(a), can be shown as follows:

A comparison of Figures 1 and 2 makes it clear that the crucial issue is the route of the trip from evidence that the defendant has previously stolen to the conclusion that he stole in the charged case. If the route goes through character (defendant is a thief), the evidence is barred by Rule 404(a); if the route goes through some other issue (defendant knew the combination of the safe), the evidence is not excluded by Rule 404(a), even though the factfinder may also conclude that defendant is a thief (the "superfluous inference" in Figure 2 and the "prohibited inference" when used as a link in a chain of inferences to get from the evidence of the prior theft to evidence of guilt of the crime charged).

Note that the analysis so far says only that the evidence of the prior theft, when offered to start the permissible chain of inferences shown in Figure 2, is not excluded. What makes it admissible? Not the propensity rule of 404(a), which is a rule of exclusion, or even Rule 404(b), which, as we have said, is merely a statement elaborating what is not made inadmissible by Rule 404(a). To be admissible, the evidence must be independently relevant under Rules 401 and 402 for some purpose other than merely proving propensity. But how does the court guard against misuse by the factfinder of the very same evidence to start the impermissible chain of inferences?

This is where Rules 105 and 403 come into play. The doctrine of limited admissibility of Rule 105 provides that "when evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." Thus, the first possibility when character-type evidence can be used by the trier of fact impermissibly as well as permissibly is for the court to admit the evidence and give an instruction to the jury directing it to use the evidence only for the permitted purpose.

What kind of limiting instruction should the court give the jury? In Problem IV-1, the limiting instruction would go something like this:

The defendant is on trial only for the crime charged. The jury may consider the evidence offered only as showing knowledge of the location and combination of the safe, and not for the fact that the defendant commits criminal acts, or that the defendant may have broken into the safe before. You have to decide whether the defendant committed the specific crime charged on the day in question, not other crimes on other days.

If you were representing the defendant, from a tactical standpoint would you want the judge to say this to the jury? Could mentioning what is prohibited suggest that very use to the jury?

Despite its questionable efficacy, the admission with a limiting instruction is what usually occurs when evidence of other crimes, wrongs, or acts is offered and objected to under Rule 404. In fact, this occurs so often that the very limited scope of exclusion of the propensity rule might be clearer if Rule 404 were turned around (as it is in several state rules), so that it said:

Evidence of other crimes, wrongs or acts which tend to prove any material fact is admissible, subject to Rule 403, unless its sole purpose is to show that the accused has a criminal propensity.

Another possibility when dealing with evidence that is not excluded by the propensity rule but might be used by the factfinder impermissibly as well as permissibly is to apply Rule 403's balancing test to the evidence. But the question must be asked whether Rule 403 applies to evidence dealt with by Rule 404. It is in answering this question that the difference between seeing Rule 404 as a limited rule of exclusion rather than a rule of admissibility becomes important. Consider for a moment whether your answer to the question of the applicability of Rule 403 to evidence of other crimes, acts, or wrongs would be different if the second sentence of Rule 404(b) said, "It is admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." If such evidence is not made admissible by Rule 404(b), but rather is admissible because it is relevant (Rule 401) and not excluded by Rule 404(a), applying the Rule 403 balancing step appears unremarkable. This is the logic that produces the "two-step" analysis. See the Danzey, Huddleston, and Beechum cases, below.

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