EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, April 15, 2012

Feeling Like A Criminal: 2nd Circuit Joins Other Circuits In Finding Rule 404(b) Covers Non-Criminal Acts

Federal Rule of Evidence 404(b) states:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Every circuit that has addressed the issue has found that Rule 404(b) extends to non-criminal acts or wrongs, and, after the recent opinion in United States v. Scott, 2012 WL 1143579 (2nd Cir. 2012), you can now add the Second Circuit to their ranks.

In Scott, William Scott was charged with distributing, and possessing with the intent to distribute, a controlled substance. Scott was arrested by two police officers, and

Prior to trial, the government informed defense counsel that it planned to ask the following questions during the direct examination of each of the two police witnesses: "About how many times had you seen [Scott] in the past? Had you spoken to him before? And when you had spoken to him before, what was about the longest conversation you had ever had with him?" The government indicated that one detective would say his longest conversation with Scott lasted five minutes, the other twenty. Defense counsel first objected to this line of questioning at a pretrial telephone conference. The district court overruled the objection because "the amount of time that the witnesses would state that they had spoken to Mr. Scott before would not lead someone to conclude that he had ever been arrested, and as we all know, that is something that, unless he takes the stand, we are not getting into his prior record."


Defense counsel continued his objection before trial, arguing that the recognition testimony would encourage the jury to speculate about Scott's prior encounters with the police. He stated:

I don't think anyone in the jury box is going to think it was a friendly encounter. I don't think the jurors are going to believe that Mr. Scott was just saying hello and asking about the officers' family life. But, rather, it would be clear that the police engaging in these conversations were doing so in the course of investigative processes, and the jury is going to believe that this is an individual who is known to the police.... Again, it's not a matter of the jury just being led to believe that the officers were setting up in a location and watching to see what, if any, activity would be happening in this known drug location, but, rather, that they intentionally stopped because they saw an individual who has been known to them in the past, who they have had encounters with in the past, and therefore they chose to stop and observe him, which would only lead a jury to believe that there is a history of criminal activity on behalf of Mr. Scott, there is a propensity for him to commit crimes or a propensity for them to do something that would warrant police observation.

After some more back-and-forth, the district court allowed for the admission of this testimony, and Scott was eventually convicted. He thereafter appealed, claiming that this testimony was improperly admitted. In response, the government claimed that Rule 404(b) was inapplicable because the police witnesses did not testify that Scott was "engaging in criminal or wrongful conduct." The Second Circuit disagreed, finding that

The problem with such an argument is that Rule 404(b) is not limited to evidence of crimes or wrongs. By its very terms, Rule 404(b) addresses "other crimes, wrongs, or acts." (emphasis added). Nothing about these words implies that the "other...acts" to which Rule 404(b) refers must be "bad." Indeed, to read the Rule as such "violate[s] the cardinal principle of statutory interpretation that courts must 'give effect, if possible, to every clause and word of a statute.'"...While crimes, wrongs, or bad acts may be more likely than other kinds of acts to demonstrate criminal propensity and thus be inadmissible for that reason under Rule 404(b), the Rule itself is in no sense limited to such acts. Each of our sister Circuits to consider the issue has concluded that Rule 404(b) extends to non-criminal acts or wrongs, and we now join them.



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