The Perfect Storm: Rule 404(b), Unequivocal Stipulations, and Old Chief’s Dicta on Narrative...

8/12/2019 The Perfect Storm: Rule 404(b), Unequivocal Stipulations, and Old Chiefs Dicta on Narrative Integrity and Evident

1/22

55

The Perfect Storm: Rule 404(b),

Unequivocal Stipulations, and Old ChiefsDicta on Narrative Integrity and

Evidentiary Richness

Richard M. Thompson II*

[Lord Chief Justice]: We must be tender of mens reputation, and not let

every thing come as evidence when it is not fit to be evidence, to put

slurs and scandals upon men that they cannot be prepared to wipe off. Is

he convicted of any crime? If he is, you say something, shew the recordof it.

[Justice Withins]: You know the case adjudged lately in this Court, a

person was indicted of forgery, we would not let them give evidence of

any other forgeries, but that for which he was indicted, because we

would not suffer any raking into mens course of life, to pick up

evidence that they cannot be prepared to answer to.1

Today we are in a dilemma about the use of prior bad acts evidence.This would not be so if modern judges were as solicitous as these twojurists were of the right of the accused to be tried for what he did, not forwho he is.2But modern judges have not heeded history and the language

of the Federal Rules of Evidence (FRE). Prior bad acts evidence is simplyevidence of a defendants prior history, whether a charged crime ortestimony from another person, that the defendant previously committed a

crime or other wrong. FRE 404(b) is the template courts use to test theadmissibility of prior bad acts.3The first sentence of FRE 404(b) providesa general prohibition against the use of a defendants prior bad acts to

* I am grateful to New England School of Law Professors Philip Hamilton and Victor

Hansen for their assistance with this Note. Though they did not agree with every premise

stated herein and as such should not be imputed with any of my flaws, they did provide

considerable guidance and were a much needed sounding board for my ideas.

1. Hampdens Trial, 9 How. St. Tr. 1053, 1103 (K.B. 1684).

2. United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977).3. FED.R.EVID. 404(b).


2/22

56 CRIMINAL AND CIVIL CONFINEMENT [Vol. 37:55

prove criminal propensity.4 However, the second sentence of the rulecategorically excepts the use of some prior bad acts for certain admissiblepurposes including proof of intent, motive, knowledge, etc.5Modern casesadmitting prior bad acts under FRE 404(b) are legion. This trend forces

defendants to stipulate to certain elements of crimes to keep this highlyprejudicial evidence from the jury. This issue comes up repeatedly in cases

where the prosecution offers evidence of a defendants prior drugconvictions to prove the intent element of the offense charged.6This Notewill not attack FRE 404(b) generally, but instead takes issue with themodern courts application of it. Modern courts have gone astray becausetheir case law is built on false premises, logically leading to falseconclusions.

The first false premise is applying FRE 404(b) as a rule of inclusion.Most courts applying FRE 404(b) cursorily state that it was intended as arule of inclusion.7The text and common law history refute this application,instead suggesting a rule of exclusionwith certain exceptions carved into

the second sentence of the rule. The second false premise is treating FRE404(b) as a standard, granting trial courts broad discretion. FRE 404(b) isbetter applied as a categorical rule, only allowing the prosecution to offerevidence that fits one of the prescribed categories. The final false premiseis predicated on dictum in Old Chief v. United States.8 This dictumsubsumes the protection of defendants from highly prejudicial evidence and

exalts the prosecutions need for evidentiary richness and narrativeintegrity.9

The dictum in Old Chief has sent lower courts astray, and there is notelling how far future courts will take this language. Broadly put, Old Chiefheld that in most felon-status cases (for example, felon in possession of ahandgun) where the defendant stipulates to his prior offense, the name andnature of the prior offense should be excluded, as it is unduly prejudicialunder FRE 403.10This Note will explore how a defendants unequivocalstipulation to an element of a charged offense, specifically the intentelement, takes that element out of issue, thereby making the evidenceinadmissible as a prior bad act under FRE 404(b). A logical and historicalreading of the rules and a modest extension of the true holding in Old Chief

4. Id.

5. Id.

6. SeeUnited States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000); United States v.

Sanchez, 118 F.3d 192, 195-96 (4th Cir. 1997).

7. 2 JACK B.WEINSTEIN &MARGARET A.BERGER,WEINSTEINS FEDERAL EVIDENCE

404.20[3](Joseph M. McLaughlin ed.,2d ed.2010)(citations omitted).8. 519 U.S. 172 (1997).

9. Id.at 183.

10. Id. at 174.


3/22

2011] THE PERFECT STORM 57

compel this conclusion.

Part I of this Note will look at the common law history leading up to theadoption of FRE 404(b). Part II will break down the language of the ruleand create a general template for applying FRE 404(b). This will

demonstrate how courts should treat stipulations to an element charged.Part III will focus on how the federal circuit courts are actually handlingthese stipulations. This section will demonstrate that an inclusionaryapproach has compelled courts to improperly admit prior bad acts after thedefendant has offered to concede that element. Part IV will assess Old

Chief: the opinions good parts (strict holding of the case), the bad (thedissents misapplication of the prosecutions constitutional burden), and theugly (the needless dicta on evidentiary richness and narrative integrity11).Part V will focus on the effects of Old Chiefs dictum on appeals court

rulings, and in particular, United States v. Crowder.12Let us start with firstprinciples: the common law.

I.COMMON LAW HISTORY OF PRIOR BAD ACTS EVIDENCE

[A] page of history is worth a volume of logic.13Modern courts havenot heeded this aphorism when dealing with FRE 404(b) and prior bad actsevidence. Their ahistorical awareness of the general common lawantecedent to FRE 404(b) has opened the dam of prior bad acts, allowing in

a flood of prejudicial evidence. Knowledge of the common law doctrinehelps shed light on the underlying rationale of FRE 404(b). History has alsoshown that, unlike modern interpretations, FRE 404(b) should be treated as

exclusionary rather than inclusionary. Finally, an historical understandingteaches us why defendants stipulations should prevent the admission ofprior bad acts.

The Supreme Court has stated that the Advisory Committee Notes to the

Federal Rules of Evidence disclose a purpose to adhere to the commonlaw in the application of evidentiary principles, absent express provisionsto the contrary.14If a rule was intended to deviate from its common lawantecedents, the Advisory Committee would have expressed this in thenotes.15 Professor Edward Cleary, Reporter of the Advisory Committee,stated that FRE 102, labeled Purpose and Construction, did little to

11. Id.at 183.

12. United States v. Crowder (Crowder I), 87 F.3d 1405 (D.C. Cir. 1996). The

Supreme Court granted a writ of certiorari on CrowderI in United States v. Crowder

(Crowder II), 519 U.S. 1087 (1997). Upon the Supreme Courts vacation of Crowder I,

CrowderII, 519 U.S. 1087 (1997) (order to vacate judgment), the D.C. Circuit took the case

up again, United States v. Crowder (Crowder III), 141 F.3d 1202 (D.C. Cir. 1998).13. New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

14. Tome v. United States, 513 U.S. 150, 160 (1995).

15. Id.at 160-61.


4/22


enlighten courts on how to interpret the FRE.16Rather, courts should usegeneral rules of statutory interpretation and the rules developed at commonlaw to fill in the gaps.17Because of the lack of guidance from FRE 404(b)itself, this Note will do as Cleary advisedlook to the common law

predecessor and the text of the rule.18

The original rule at common law allowed in evidence of prior bad acts

so long as it was relevant and not offered to prove criminal propensity.19In

State v. Van Houten, one of the earliest American cases dealing with priorbad acts, the prosecution offered evidence that the accused had previouslyused forged currency to buy products throughout the town.20The defendantallegedly used a counterfeit ten-dollar bill to purchase a pair of gloves at asmall shop in Trenton.21The prosecutor offered evidence that the defendantused other counterfeit bills at different shops in Trenton that same night.22

The prosecutions argument rested on the fact that knowledge of thecounterfeit bills could not be proved unless the state was allowed to offerevidence that the defendant used counterfeit bills on other occasions that

night.

23

The defendant argued that these other allegations of passing offcounterfeit bills were in no way connected with the crime charged and thatthis evidence was the basis of another substantive offense, different fromthe one Van Houten was on trial for.24Ultimately, the court allowed theevidence based on the prosecutions argumentthat the evidence beadmitted to prove the defendant had the requisite knowledge required to

prove the offense.25

Notice that neither the prosecution nor the defense argued that theevidence must fit a categorical exception.26 Rather, both sides simplyargued for and against the relevance of the evidence toward something

besides character propensity.27 Thus, it seems that this was a binary

16. Edward W. Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 NEB.

L.REV. 908, 908 (1978).

17. Id.at 908-09.

18. Id.

19. Julius Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51HARV.

L. REV. 988, 993-94 (1938). The rule prohibiting the use of character evidence is long

embedded in Anglo-Saxon common law. Id. As far back as 1684, courts have refused to

admit prior bad acts to prove that the accused acted in conformity therewith on the present

occasion. Hampdens Trial, 9 How. St. Tr. 1053, 1103 (K.B. 1684).

20. State v. Van Houten, 3 N.J. (2 Penn.) 248, 249 (1810).

21. Id.at 248-49.

22. Id.at 249.

23. Id.

24. Id.25. Id. at 250.

26. Id.at 249-50.

27. Id.


5/22


analysis: evidence either was or was not relevant to a fact to be provenother than character. This binary analysis eventually evolved into acategorical rule in American courts. It is with this change that Congressenacted FRE 404(b).

Beginning around 1840, courts began to admit evidence only if it fellinto an exception to the broad rule of exclusion of prior bad acts.28Twoearly Massachusetts cases exemplify this shift. In Rowley v. Bigelow, theMassachusetts Supreme Judicial Court held that the evidence wasadmissible because it went to the defendants intent and fraudulentpurpose; that it was a material fact and the principal fact in controversy onwhich th[e] case rest[ed].29 The court did not rest its holding on somecategorical rule of exclusion, but rather found that the evidence wasrelevant to the issues of intent and fraudulent purpose, neither of which

were offered for a criminal propensity.30Put another way, the evidence waslogically relevant and was not offered to suggest character purpose.31Thissuggests a broad rule of inclusionsimilar to the New Jersey case, State v.

Van Houten.

32

Only ten years later in Commonwealth v. Stone, Chief Justice Shaw, thesame author of theRowley opinion, intimated that a broad rule of exclusionshould apply.33In Stone, the defendant presented a five-dollar bill knowingthat the bank issuing the note was insolvent and could not back the bill.34Chief Justice Shaw stated that the evidence that the defendant had passedoff similar bills in the past proved the scienter requirement: that is, he hadthe required knowledge that the bank was insolvent.35Before admitting theevidence, Chief Justice Shaw noted that it fit into an exception to thegeneral rule of evidence.36UnlikeRowley, where a broad rule of inclusion

applied, Stonecreated the necessary condition that the evidence fit into oneof the exceptions to the general prohibition of this type of evidence. 37Thisshift was not an isolated event but occurred frequently in many statecourts.38

28. SeeStone, supranote 19, at 1000-04.

29. Rowley v. Bigelow, 29 Mass. (12 Pick.) 307, 316 (1832).

30. Stone, supra note 19, at 1003.

31. Rowley, 29 Mass. (12 Pick.) at 316.

32. 3 N.J. (2 Penn.) 248 (1810).

33. Commonwealth v. Stone, 45 Mass. (4 Met.) 43, 47 (1842).

34. Id. at 44.

35. Id. at 47.

36. Id.

37. Id.

38. SeeHerman v. State, 22 So. 873, 873 (Miss. 1898) ([The rule excluding prior bad

acts] is not without exceptions, and one of the excepted classes is where the evidence of a

former, distinct offense is offered to show intent or motive in the commission of the crime


6/22


This was the state of the law when Congress enacted FRE 404(b). Thequestion must then be: did Congress intend to codify this categorical rule ofexclusion that had developed at common law, or did it intend to revert backto the old inclusionary rule? Looking at the common law history, it is clear

that Congress intended courts to retain this rule of exclusion. NeitherCongress nor the Advisory Committee Notes say anything to the contrary.

The language of FRE 404(b) suggests the same conclusion.

II.ANALYTICAL TEMPLATE FOR FRE404(b)

A proper analysis of the text of FRE 404(b) is required to understandwhy an unequivocal stipulation to an element of a crime precludesadmission of prior bad acts. First, the relevant language of FRE 404(b)states: Evidence of other crimes, wrongs, or acts is not admissible to provethe character of a person in order to show action in conformity therewith. Itmay, however, be admissible for other purposes, such as motive,opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident . . . .39

Many courts have deemed FRE 404(b) as a ruleof inclusion, meaning evidence of this type can be used so long as it is notoffered for a character propensity argument.40This incorrect reading of therule leads courts to the false conclusion that a defendants stipulation to anelement of the crime charged does not take the element out of issue. Thetext actually supports the opposite conclusion, that FRE 404(b) be treatedas a rule of exclusion.

A helpful way to look at FRE 404(b) is to divide it into two distinctparts: the first is the prefatory sentence and the second is the operativesentence. The prefatory sentence announces a purpose:41evidence may notbe offered for strictly character propensity purposes. As written, theprefatory sentence in FRE 404(b) requires a total ban on character evidence

for the purpose of making a character propensity argument. This is not theonly instance of a ban on character evidence in the Federal Rules of

Evidence. This type of evidence is already explicitly barred in FRE 404(a):

charged.); Leezer v. State, 51 S.W.2d 606, 606-07 (Tex. Crim. App. 1932) (holding that

prior bad acts must fall into certain categories to be admissible).

39. FED.R.EVID.404(b).

40. See United States v. Van Metre, 150 F.3d 339, 349 (4th Cir. 1998) (Because

[FRE 404(b)s] list is illustrative, rather than exclusive, FRE 404(b) is considered a rule of

inclusion.); United States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997) (commenting that

the Fourth Circuit has a very inclusive interpretation of Rule 404(b)); United States v.

Harris, 733 F.2d 994, 1006 (2d Cir. 1984) ([E]vidence of prior crimes, wrongs, or acts is

admissible for any purpose other than to show a defendants criminal propensity.); seealso

WEINSTEIN & BERGER, supra note 7 (Rule 404(b) adopts an inclusionary approach,

generally providing for the admission of all evidence of other acts that is relevant to an issue

at trial, excepting only evidence offered to prove criminal propensity.).

41. District of Columbia v. Heller, 554 U.S. 570, 577 (2008).


7/22


8/22


on the vagaries of FRE 403 balancing. Further, the common law and thestatutory language should take supremacy over the Advisory CommitteeNotes.

If Congress intended to revert to the old inclusionary approach, FRE

404(b) would have resembled the following: Evidence of other crimes,wrongs, or acts is not admissible to prove the character of a person in orderto show action in conformity therewith. It may, however, be admissible forany other purpose other than proving the character of the person in order toshow action in conformity therewith. But this is not how FRE 404(b) waswritten. Congress prescribed certain categorical exceptions to the ban oncharacter evidence, exceptions long developed at common law.

Further supporting the notion that FRE 404(b) is to be read as a rule ofexclusion, rather than inclusion, is that FRE 404(b) was intended to operateas a rule rather than a standard. To understand whether FRE 404(b) wasintended to be rule-like or standard-like is to understand how the courtsshould approach this evidence. Contrasting FRE 401, which is clearly a

standard, against FRE 404(b) underscores the notion that FRE 404(b) isbetter defined as a rule. Under FRE 401, a court need only determine thatevidence has any tendency to make the existence of any fact . . . moreprobable or less probable than it would be without the evidence.52To putthe point differently, a court analyzing relevance under FRE 401 asks:Does learning of [the] evidence make it either more or less likely that thedisputed fact is true?53This is arguably the lowest evidentiary standardutilized by courts. The old saw, [a] brick is not a wall, is as good of asummation as can be given to describe how low the burden is.54A piece ofevidence need not meet the standards of either preponderance of the

evidence or beyond a reasonable doubt, as is required at trial, but simplymust prove that the evidence will make the existence of a fact to be provenmore or less probable.55

FRE 404(b), on the other hand, requires more than just simplerelevancy.56The Advisory Committee Notes to FRE 401 call attention tothe divergent analyses performed under FRE 401 and 404(b):

An enormous number of cases fall in no set pattern, and [Rule 401] is

52. FED.R.EVID.401.

53. 1 GEORGE E. DIX ET AL., MCCORMICK ON EVIDENCE 185, at 730 (Kenneth S.

Broun ed., 6th ed. 2006) (internal quotation marks omitted).

54. Id. at 733.

55. FED.R.EVID.401.

56. In Crowder I, the D.C. Circuit noted the difference between a FRE 401 and 404(b)

analysis, stating that FRE 404(b) evidence has its own specialized rule[s] of admissibility

whereas other evidence is susceptible only to the general provisions of Rules 401 and 403.

United States v. Crowder (Crowder I), 87 F.3d 1405, 1414 (D.C. Cir. 1996). The court did

not fully articulate what these specialized rules are.


9/22


designed as a guide for handling them. On the other hand, some

situations recur with sufficient frequency to create patterns susceptible

of treatment by specific rules. Rule 404 and those following it are of

that variety; they also serve as illustrations of the application of the

present rule as limited by the exclusionary principles of Rule 403.57

As the notes suggest, because of the amorphousness and low thresholdburden of proving relevancy under FRE 401, there can be no strictpattern of analyses employed to determine whether a piece of evidence isrelevant.58 However, under FRE 404(b), there are distinct categories ofpurposes for which the evidence may be offered.59 Though the list of

permissible purposes is neither mutually exclusive nor collectivelyexhaustive, courts have created clear mechanisms for handling these typesof evidence.60

FRE 401 and 403 closely resemble standardsthey allow courts toconsider all the relevant factors under the circumstances, while alwayskeeping in mind the fundamental reasons these standards were created

(e.g., need for the jury to hear relevant evidence balanced with thepossibility of excluding prejudicial evidence). Congress placed theresponsibility of balancing these factors with the courts. FRE 404(b), on theother hand, more closely resembles a rule.61Congress balanced the relevantfactors and created categories that evidence must fall into, captur[ing] thebackground principle or policy in a form that from then on operatesindependently.62 Unlike FRE 403, where the court does the balancing,Congress embedded within FRE 404(b) its own conclusion on thebalancing: if the prior bad act does not fit within one of the prescribedcategories, the evidence is to be excluded.63

Finally, to understand why FRE 404(b) should be treated as anexclusionary rule, rather than as an inclusionary rule, is to understand the

American system of criminal justice as a whole. It would be quiteanomalous to have such an inclusionary rule for prior bad acts in a system

57. FED.R.EVID.404(b) advisory committees note.

58. Id.

59. FED. R. EVID. 404(b) (permitting evidence of other crimes, wrongs, or acts as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident); MCCORMICK,supra note 53, 190, at 752-65.

60. MCCORMICK,supra note 53, 190, at 752-68.

61. See generally Kathleen M. Sullivan, Foreword: The Justices of Rules and

Standards, 106 HARV.L.REV. 22, 58 (1992) (A legal directive is rule-like when it binds a

decisionmaker to respond in a determinate way to the presence of delimited triggeringfacts.).

62. Id.

63. FED.R.EVID.404(b).


10/22


that prefers having the guilty go free over having the innocent convicted.64An inclusionary rule tips the scales against the defendant. The courts enterthe analysis with an eye toward admitting rather than excluding theevidence.

To recap, FRE 404(b) should be treated as a rule of exclusion, ratherthan inclusion. This means that evidence must fall into one of theexceptions laid out in the second sentence of FRE 404(b) to be admissible.Evidence cannot simply meet the logical relevancy, or any tendency,standard contemplated in FRE 401, but it must be relevant to one of thepermissible purposes laid out by Congress in the second sentence of FRE404(b). Some argue that the language such as in FRE 404(b) is merelyillustrative, not exhaustive, and that prior bad acts can be offered foranything except criminal propensity.65The such as language, however,

can be explained by understanding the growth of the common law ingeneral. The term such as does not contemplate the courts allowing inevidence on anything but character propensity. This term merely gives

courts the ability to develop categories over time; it does not, however,allow an ad hoc admission of any relevant evidence. Modern courtsmisapprehension of the rule has had a great effect on the admission ofprejudicial evidence.

III.THE DILEMMA OF AN INCLUSIONARY APPROACH TO FRE404(b)

Formulating FRE 404(b) as a rule of inclusion has a significant effect onhow courts treat a defendants offer to concede the intent element of the

charged offense. This dilemma plays out in the federal circuit courts on adaily basis. The circuits are split into three loose camps. The Fourth, Sixth,Seventh, and Ninth Circuits have refused to apply a categorical rule tothese questions, instead providing trial judges broad discretion when

determining the admissibility of FRE 404(b) evidence.

66

The Third andFifth Circuits have required a stricter showing of necessity by the

prosecutor when the defendant concedes an element.67The First, Second,

64. As Blackstone once said: [B]etter that ten guilty persons escape, than that one

innocent suffer. 4 WILLIAM BLACKSTONE,COMMENTARIES ON THE LAWS OF ENGLAND352

(photo. reprint, Univ. of Chicago Press 1979) (1769).

65. Edward J. Imwinkelried,A Small Contribution to the Debate Over the Proposed

Legislation Abolishing the Character Evidence Prohibition in Sex Offense Prosecutions, 44

SYRACUSE L.REV. 1125, 1136 (1993).

66. United States v. Myers, 123 F.3d 350, 363 (6th Cir. 1997); United States v.

Brown, 34 F.3d 569, 572-74 (7th Cir. 1994); United States v. Hernandez, 975 F.2d 1035,

1039-41 (4th Cir. 1992); United States v. Hadley, 918 F.2d 848, 852 (9th Cir. 1990).

67. United States v. Jemal, 26 F.3d 1267, 1274 (3d Cir. 1994) ([Courts should]

generally deem prior bad acts evidence inadmissible to prove an issue that the defendant

makes clear he is not contesting.); United States v. Yeagin, 927 F.2d 798, 803 (5th Cir.

1991) (citing United States v. OConnor, 580 F.2d 38, 43 (2d Cir. 1978) ([Government


11/22


Eighth, and Eleventh Circuits have taken the strictest approach, holdingthat a defendants stipulation to an issue removes it from a case, thereforerequiring that prior bad acts be excluded.68The D.C. Circuit fell into thislast group until Crowder II was vacated and remanded.69

The Fourth Circuit has adopted one of the loosest interpretations of FRE404(b). In obvious distaste for the prohibition against admitting prior badacts, the court states that FRE 404(b) is designed to exclude evidence thatmany both within and without the legal system intuitively find powerfuland useful.70 The common law and the text of FRE 404(b) require theelement that the prosecution offers the evidence for be an actual issue,meaning it is actually in dispute. In direct contradiction to this, the FourthCircuit does not require this evidence to be in dispute.71 Moreover, trialcourts need not say for what purpose the evidence is being admitted.72By

formulating the test as inclusionary, the Fourth Circuit turns the analysis onits head. Instead of requiring the evidence to meet one of the categorieslisted in the second sentence of FRE 404(b), the court states that the prior

bad act need only be (1) relevant to an issue other than character, (2)necessary, and (3) reliable.73 There are many problems with thisformulation.

First, this reliance on simple relevancy is a reversion to the anytendency standard of FRE 401. Congress did not intend such a regression.Reliance on simple relevancy would make the second sentence of FRE404(b) superfluous. Second, a prior bad act is necessary under FourthCircuit law if it is an essential part of the crime charged or if it furnishespart of the context of the crime.74 This standard could be construed toadmit almost any type of bad act for any reason. Even if a defendant offers

to concede the intent element, the prosecution could still proffer the

must] explain why the evidence is relevant and necessary on a specific element that the

government must prove.)).

68. United States v. Thomas, 58 F.3d 1318, 1321-22 (8th Cir. 1995) (citing United

States v. Jenkins, 7 F.3d 803, 806 (8th Cir. 1993)); United States v. Taylor, 17 F.3d 333, 338

(11th Cir. 1994) (citing United States v. Costa, 947 F.2d 919, 925 (11th Cir. 1991)); United

States v. Garcia, 983 F.2d 1160, 1174 (1st Cir. 1993) (citing United States v. Colon, 880

F.2d 650, 658 (2d Cir. 1989)); United States v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980)

(citing United States v. Mohel, 604 F.2d 748, 754 (2d Cir. 1979)).

69. United States v. Crowder (Crowder II), 519 U.S. 1087, 1087 (1997).

70. United States v. Hernandez, 975 F.2d 1035, 1038 (4th Cir. 1992).

71. Id. at 1039 (quoting United States v. Rawle, 845 F.2d 1244, 1247 n.3 (4th Cir.

1988)).

72. Id.

73. Id. (quotingRawle, 845 F.2d at 1247).

74. Rawle, 845 F.2d at 1247 n.4 (quoting United States v. Smith, 446 F.2d 200, 204

(4th Cir. 1971)).


12/22


evidence if it furnishes part of the context of the crime.75This standard isa boon to prosecutors in the Fourth Circuit, who, through their own powersof imagination, should be able to argue that most prior bad acts will furnishthe context of the crime.

The Seventh Circuit has followed a similar approach. In United States v.Brown, the accused was indicted under 21 U.S.C. 841(a) and 846 for anattempt to purchase cocaine.76Prior to trial the accused moved to preventtestimony of four government witnesses who would testify that Brownbought and sold drugs to them in the past.77 The accused was neverconvicted, and was not on trial, for these allegations.78 The prosecutionoffered the testimonies to prove the intent element of the crime charged;that is, if the accused had participated in the drug trade in the past, then hehad intentionally done so in this case.79

The defendant attempted to concede the intent element of the crime inorder to keep this prejudicial evidence from the jury.80The court dismissedthis argument stating that even if a stipulation is offered the prosecution

has to be allowed to prove its entire case if it so chooses.

81

Again, this is atotal misapprehension of what Rule 404(b) envisions. The D.C. Circuitpresents a better way of handling a stipulation to the intent element.

In Crowder I, the D.C. Circuit came to a more sensible resolution of adefendants concession to intent. In that case the United States Court ofAppeals for the D.C. Circuit was presented with the question, what effecta defendants unequivocal offer to concede elements of a crime has on theadmissibility of prior bad acts evidence under Federal Rule of Evidence

404(b)[?]82

Crowder I was a consolidated case with two defendants facing drugcharges.83The first defendant, Davis, was charged with intent to distributecrack cocaine under 21 U.S.C. 841(a)(1).84 An undercover agent was

directed to a seller with whom he had no prior dealings.

85

The agent gavethe seller twenty dollars and was instructed to wait while the seller went toget the drugs.86The agent was then directed to pick up the drugs from a

75. Id.

76. United States v. Brown, 34 F.3d 569, 571 (7th Cir. 1994).

77. Id. at 572.

78. Id.

79. Id. at 572-73.

80. Id.at 573.

81. Id.(citing United States v. Chaimson, 760 F.2d 798, 805 (7th Cir. 1985)).

82. United States v. Crowder (Crowder I), 87 F.3d 1405, 1407 (D.C. Cir. 1996).

83. Id.84. Id.

85. Id.

86. Id. at 1407-08.


13/22


nearby windowsill.87The agent broadcasted the identities of the sellers tothe other agents.88 The other agents stopped two individuals fitting thedescription.89Davis was one of the persons stopped.90

Davis put forth a defense of mistaken identity, claiming that he was

merely at the wrong place at the wrong time.91

Before trial, the governmentinformed Davis that it intended to introduce prior bad acts evidencethreeprior cocaine salesto prove knowledge and intent.92At trial, Davis offeredin writing and orally that he would stipulate to both knowledge and intent,leaving only the element of possession left for the government to prove. 93After performing an FRE 403 balancing, the district court admitted theprior bad acts.94Davis was subsequently convicted on both counts againsthim.95

The second defendant, Crowder, was charged with possession withintent to distribute crack cocaine and heroin.96The governments witnessestestified that three officers observed Crowder give an unidentified man asmall object for cash.97 A chase then ensued, during which Crowder

purportedly threw a brown paper bag, containing ninety-three bags of crackand thirty-eight bags of heroin.98 Crowder argued at trial that he neverpossessed the paper bag.99Before trial, the prosecution informed Crowderthat it intended to introduce Crowders prior drug conviction intoevidence.100 Crowder objected to introduction of this evidence, insteadoffering to stipulate to the other elements of the offense, intent andknowledge, leaving only possession for the prosecution to prove.101 Thedistrict court admitted the prior bad acts evidence and Crowder was laterconvicted.102

On appeal, the D.C. Circuit ultimately ruled that the prior bad acts were

87. Id. at 1408.

88. Id.

89. Id.

90. Id.

91. Id.

92. Id.

93. Id.

94. Id.

95. Id.

96. Id.

97. Id.

98. Id.

99. Id.100. Id.

101. Id. at 1408-09.

102. Id.at 1409.


14/22


impermissibly admitted.103Surveying the circuits that had considered thisquestion, the D.C. Circuit found the approach used by the Second, Eighth,and Eleventh Circuits most compelling.104In order for prior bad acts to beadmitted, the act must be relevant to an actual issue and that an offer to

stipulate to an issue removes it from the case.105

The D.C. Circuitreasoned that a defendants offer to concede certain elements of an offense

(in this case knowledge and intent) combined with instructing the jury thatthe government is relieved of its burden on these elements, will give thegovernment everything it needs to prove the elements, all doing so withoutrisking prejudice to the defendant.106The court then laid out an analyticalframework for handling an offer to stipulate to an element: (1) an offer toconcede an element must be unequivocal, (2) the defendant may not latercontest the conceded element, and (3) a jury instruction must be given thatclearly informs the jury that they need only find the contested elements.107This is a workable framework, taking into consideration both the interests

of the defendant and the prosecution. The most important aspect of the

Crowder IIdecision was the application of the exclusionary rule. Becausethe evidence was stipulated to, that element was no longer in dispute. Thus,the prosecution could not offer the prior bad act to prove intent. Contrary tothe Fourth and Seventh Circuits approach, this is how the exclusionaryrule should function.

Taking a look at the circuit landscape, some courts were properlydealing with prior bad acts and others were not. Then Old Chief wasdecided.108The holding of the case certainly makes sense. However, thedictum in Old Chief is where the problem lies. The scales were alreadytipped in favor of the prosecution before Old Chiefnow even more so.

103. Id. at 1410.

104. Id.

105. Id. (citing United States v. Mohel, 604 F.2d 748, 751 (2d Cir. 1979)). In the

Second Circuit, a defendant need not explicitly stipulate to the element; it is sufficient to

remove an issue from consideration as long as the decision not to dispute the issue is made

[W]ith sufficient clarity that the trial court will be justified (a) in sustaining

objection to any subsequent cross-examination or jury argument that seeks to raise

the issue and (b) in charging the jury that if they find all other elements

established beyond a reasonable doubt, they can resolve the issue against the

defendant because it is not disputed.

Id. (quoting United States v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980)).

106. Id.at 1411.

107. Id.

108. Old Chief v. United States, 519 U.S. 172, 174 (1997) ([The] district court abuses

its discretion when it spurns defendants offer to admit to evidence of prior conviction

element of offense and instead admits full record of prior judgment of conviction when

name or nature of prior offense raises risk of verdict.).


15/22


IV.OLD CHIEF:LOGICAL HOLDING,ILLOGICAL DICTUM

Old Chief can be interpreted in many ways. The confusion surroundingthis case can be cleared up by looking strictly at its holding. In most felon-status cases, the prosecution must accept a stipulation to the prior felony, as

evidence of it is unduly prejudicial to the defendant.109 The Court madeclear in its opinion that its holding only controls proof of felon-status

cases.110After the Court disposed of the case on the merits, it went into along discussion about the prosecutions need for narrative integrity andevidentiary richness.111 This needless, and at points illogical, dictumhampers the actual holding of the case.

A. Old Chief: The Facts

Old Chiefinvolved the prosecution of Johnny Lynn Old Chief under 18U.S.C. 922(g)(1) for possession of a firearm with a prior felony

conviction.112In order to prevail the government was required to show thatOld Chief fell within the prescribed felon-status category of 922(g)(1);

that is, that he had previously been convicted of a crime carrying a prisonsentence of more than one year.113 Old Chief had in fact committed anearlier crime of assault causing serious bodily injury, bringing him withinthe statutes reach.114Understandably, Old Chief wanted to keep the nameand nature of this offense away from the jury. He moved to keep thegovernment from mentioning any part of the prior conviction except tostate that he fell under the prior-felon-status element.115Old Chief agreed

to stipulate to this fact.116

The government refused to stipulate, insisting instead on the right of theprosecutor to prove [the] case his own way.117The district court agreed,stating that if [the prosecutor] doesnt want to stipulate, he doesnt haveto.118The evidence of Old Chiefs prior conviction, including the nature

of the offense and his sentence, was admitted, and the jury found Old Chiefguilty.119 Old Chief appealed.120 The Ninth Circuit upheld the district

109. Id.

110. Id. at 183 n.7 (While our discussion has been general because of the general

wording of Rule 403, our holding is limited to cases involving proof of felon status.).

111. Id. at 186-89.

112. Id. at 174.

113. Id.at 174-75 (referencing 18 U.S.C. 922(g)(1) (1994)).

114. Id. at 175.

115. Id.

116. Id.

117. Id. at177.118. Id.(citation omitted).

119. Id.

120. Id.


16/22


courts ruling, stating that [r]egardless of the defendants offer to stipulate,the government is entitled to prove a prior felony offense throughintroduction of probative evidence.121 The court further stated that[u]nder Ninth Circuit law, a stipulation is not proof, and, thus, it has no

place in the FRE 403 balancing process.122

The Supreme Court grantedOld Chiefs writ of certiorari to settle the circuit split over how courts

should treat a defendants effort to exclude evidence of prior convictions,including the name and nature of the offense.123

B. Old Chief: The Courts Analysis

The Court, speaking through Justice Souter, first laid bare Old Chiefsargument that the name and nature of his prior conviction becameirrelevant once he offered to stipulate to the felon-status element of 922(g)(1).124 Relying on the text and the Advisory Committee Notes toFRE 401, the Court found the likelihood that Old Chief fell under thefelon-status element was more probable with the admission of the name

and nature of his prior felony.125

Because proof of his prior conviction metFRE 401 requirements, the evidence was deemed relevant.126

Next, the majority analyzed whether the evidence was unduly prejudicialunder FRE 403.127The Court first referred to an island theory, in whichthe probative value and prejudicial effect of a piece of evidence is looked at

in total isolation.128 The opinion noted how this theory would produceodd results, because if evidence was looked at in isolation it would affordthe prosecution the ability to produce evidence with the most danger of

unfair prejudice.129

Justice Souter then goes on to state what the proper analysis should beunder FRE 403. The Court states that lower courts should not look at theevidence in isolation, but should evaluate the degrees of probative value

121. Id. (citing United States v. Breitkreutz, 8 F.3d 688, 690 (9th Cir. 1993)).

122. Id. (citingBreitkreutz, 8 F.3d at 691-92).

123. Id.

124. Id. at 178.

125. Id. at 178-79; see FED. R. EVID. 401 (Relevant evidence means having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.). The Court

relies heavily on the Advisory Committee Notes to conclude that the fact to which

evidence is directed need not be in dispute. Old Chief, 519 U.S. at 179 (quoting FED.R.

EVID. 401 advisory committees note) (internal quotation marks omitted). Finding this, the

Court holds that a defendants offer to stipulate will not make a fact to be proved irrelevant.

Id.

126. Old Chief, 519 U.S. at 179.127. Id.at 180-81.

128. Id. at 182.

129. Id. at 183-84.


17/22


and unfair prejudice not only for the item in question but for any actuallyavailable substitutes as well.130The opinion goes on to say that, [i]f analternative were found to have substantially the same or greater probativevalue but a lower danger of unfair prejudice the Court would then be

required to discount the value of the item first offered and exclude it if itsdiscounted probative value were substantially outweighed by unfairly

prejudicial risk.131

The Court recognized that in most instances where a defendant offers tostipulate, it will have the same probative value as the purported prejudicialevidence.132 In Old Chiefs case, his offer to stipulate to the predicateoffense had the same or greater probative value of proving this element ofthe crime. This basic holding in Old Chiefis certainly logical: a defendantcan stipulate to the status element of the offense if the stipulation offers the

prosecution all the proof it needs to prove the felon-status element.133

C. Unneeded Dictum: Why Ruin a Good Thing?

If the Court had stopped there, the outcome would have been proper. Itis hard to fault the reasoning surrounding the holding of this case. But themajority went further. After the Court disposed of the case on the merits,the opinion took a turn, going into a long discussion about the prosecutorsnarrative integrity and its need for evidentiary richness.134

Undoubtedly, these passages are pure dictum, have no effect on thedisposition of the case, and undermine the true holding.135

There has been an alarming trend of courts over the years to go beyondthe dispute with which they are confronted and comment on issues notproperly before the court. One circuit judge described dictum as follows:

If the courts judgment and the reasoning which supports it would

remain unchanged, regardless of the proposition in question, that

proposition plays no role in explaining why the judgment goes for thewinner. It is superfluous to the decision and is dictum. The dictum

consists essentially of a comment on how the court would decide some

other, different case, and has no effect on its decision of the case before

130. Id. at 182.

131. Id. at 182-83.

132. Id. at 191.

133. Id. at 174.

134. Id. at 183.

135. Justice Souters opinion in Old Chief exemplifies the modern Courts use of

extended dictuma trend that is troubling beyond this particular instance. SeeJames Joseph

Duane, Screw Your Courage to the Sticking-Place: The Roles of Evidence, Stipulations,

and Jury Instructions in Criminal Verdicts, 49 HASTINGS L.J. 463, 465 (1998) (referring to

the dictum in Old Chiefas an utterly specious makeweight, and that it appeared that the

Court had forgotten the actual question under discussion.).


18/22


it.136

Applying this analysis to Old Chief, the proposition in question, thesupposed dictum, is the Courts lengthy discussion about the prosecutionsneed for narrative integrity and evidentiary richness.137If we were to

remove this reasoning from the Courts opinion, would the result have beendifferent? Absolutely not. Removing this proposition would actually

strengthen Old Chiefs case. If the Court did not consider the prosecutionsneed for narrative integrity, the balance would have come down on theside of Old Chief even more significantly. The Courts theory that asyllogism is not a story and that the prosecution needs to tell aconvincing tale has allure at first glance.138It has been proven that jurorstend to understand evidence best if told as a story.139 But courts areallowing this story to be told at great cost to the defendant. The need for astory should never outweigh the highly prejudicial nature of prior bad acts.

There is always the argument that higher courts need to lay down broadprinciples in order to give direction to lower courts that confront similar

questions. This can easily be countered with Chief Justice Robertss aptsaying: If it is not necessary to decide more to dispose of a case, in myview it is necessary not to decide more.140 In Old Chief, it was not

necessary for the Court to discuss in length the narrative integrityrequired by the prosecution; thus it was not necessary to go further. For theCourt to say that in most instances the narrative integrity would overridethe protection against prejudicial evidence is to say too much. The Courtshould have tethered itself to the facts it was presented. This dictum in OldChiefproved fatal no less than one year after it was handed down, wherethe Court vacated the D.C. Circuits decision in United States v. CrowderII.141

V.OLD CHIEFS HOLDING SHOULDNOT HAVECOMPELLED VACATION OF CROWDERI

An order to vacate the judgment of a lower court and remand the matterback to the lower court has been described as [t]he most puzzling mode ofdisposition in the Supreme Courts repertory.142There are widely varying

136. Pierre N. Leval,Judging Under the Constitution: Dicta about Dicta, 81 N.Y.U.L.

REV. 1249, 1256 (2006) (footnote omitted).

137. Old Chief, 519 U.S. at 183.

138. Id. at 189.

139. See Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision

Making: The Story Model, 13 CARDOZO L.REV. 519, 523 (1991).

140. Cass R. Sunstein, The Minimalist, L.A.TIMES,May 25, 2006, at B11, available athttp://articles.latimes.com/2006/may/25/opinion/oe-sunstein25.

141. United States v. Crowder (Crowder II), 519 U.S. 1087, 1087 (1997).

142. Arthur D. Hellman, The Supreme Courts Second Thoughts: Remands for


19/22


notions as to what a vacation means. Some courts believe that a vacationmerely means that the lower court must reconsider the case in light of thenew Supreme Court decision, but is not obligated to a certain outcome.143One judge stated that if the Supreme Court had wanted to reverse the

decision, it could and would have said so.144

Another judge disagreesstating, The Supreme Court was seeking to be gentle with us but there

is . . . no mistaking what they expected us to do. The Supreme Courtthought [the new decision] both relevant and dispositive.145The vacationof Crowder Icould signify many things.

The Crowder III court, reviewing its earlier decision, stated that the

Crowder I decision rested upon the proposition that once a defendantoffered to concede an element of an offense, it was no longer relevant and,thus, inadmissible.146 The majority found that [t]ested against the

Supreme Courts Old Chiefdecision, the theory of Crowder I fails.147Themajority, following the decision in Old Chief, stated that evidence need notbe in dispute to be relevant.148 Further, if trial courts are to exclude

evidence of prior bad acts, it must occur at the point of the FRE 403balancing, and not on a strict theory of admissibility under FRE 404(b).149The majority laid down, in no uncertain terms, a holding that runs counterto Old Chiefs actual holding and what FRE 404(b) requires:

We hold that a defendants offer to stipulate to an element of an offense

does not render the governments other crimes evidence inadmissible

under Rule 404(b) to prove that element, even if the defendants

proposed stipulation is unequivocal, and even if the defendant agrees to

a jury instruction of the sort mentioned in our earlier opinion.150

The court also noted that prior bad acts evidence is admissible in but onecircumstancefor the purpose of proving that a persons actionsconformed to his character.151As shown above, this is a misapprehension

of what the common law and the text of the rule allows. Evidence must fitinto one of the prescribed categories (e.g., motive, intent, knowledge) in

Reconsideration and Denials of Review in Cases Held for Plenary Decision,11 HASTINGS

CONST.L.Q.5, 5 (1983).

143. Sharpe v. United States, 712 F.2d 65, 65 n.1 (4th Cir. 1983).

144. Id.

145. Id. at 67 (Russell, J., dissenting).

146. United States v. Crowder (Crowder III), 141 F.3d 1202, 1205 (D.C. Cir. 1998)

(citing United States v. Crowder (Crowder I), 87 F.3d 1405, 1410 (D.C. Cir. 1996)).

147. Crowder III, 141 F.3d at 1206.

148. Seeid.

149. Seeid.

150. Id.at 1209.

151. Id. at 1206 (citing United States v. Jenkins, 928 F.2d 1175, 1180 (D.C. Cir.

1991)).


20/22


order to be admissible. This was the courts first misstep.

Then the majority harvested the dictum planted in Old Chief. The courtechoed the narrative integrity theme espoused in Old Chief: that is, that itwould confuse the jury and make them wonder why certain evidence is not

being put forth.152

The Crowder IIImajority quoted all the familiar linesfrom Old Chief, that a syllogism is not a story, that jurors may wellwonder what they are being kept from knowing, and that jurors whohear a story interrupted by gaps of abstraction may be puzzled at themissing chapters.153

It is perfectly reasonable that a juror be suspicious when evidence is notoffered for a disputed matter.154But that is not the situation the court facedin Old Chiefor Crowder III. Because the defendant offered to stipulate tothe intent element, it was not in dispute.155It has been noted that it wouldbe quite absurd to suggest that a jury is . . . apt to penalize a litigant whooffers no evidence to prove a point that was admitted in open court by hisadversary[.]156 Further, [n]o sane jury would ever penalize the

prosecution for not offering evidence on a point that the defendant hasalready conceded.157 It would actually hurt the prosecution if the jurybelieved the prosecution was piling on cumulative evidence.

The effect of the dictum in Old Chief is not solely limited to CrowderIII. In United States v. Walker, the Eighth Circuit commented that thedictum in Old Chief signaled that in most instances, the prosecution isentitled to prove its case as it sees fit, and a criminal defendant may notstipulate or admit his way out of the full evidentiary force of the case

against him.158The Seventh Circuit, in United States v. Williams, was alsofaced with a defendants offer to stipulate to knowledge and intent.159Thecourt held that Old Chief counsels that this type of stipulation does notrender inadmissible the prosecutions evidence of prior crimes.160 Thecourt picked up on the narrative integrity argument, stating that allowingthe defendant to stipulate to intent would hinder unfairly the prosecution

by breaking the natural sequence of narrative evidence and would render

152. Id.at 1207.

153. Id. (quoting Old Chief v. United States, 519 U.S. 172, 189 (1997)).

154. See Duane, supra note 135, at 465; see also Stephen A. Saltzburg, A Special

Aspect of Relevance: Countering Negative Inferences Associated with the Absence of

Evidence, 66 CALIF.L.REV. 1011, 1011 (1978).

155. Crowder III, 141 F.3d at 1204.

156. Duane, supra note 135, at 465.

157. Id. at 465-66.

158. United States v. Walker, 428 F.3d 1165, 1168 (8th Cir. 2005) (quoting Old Chief,519 U.S. at 186).

159. United States v. Williams, 238 F.3d 871, 876 (7th Cir. 2001).

160. Id.


21/22


prosecutors unable to meet the jurys expectations of proof regardingimportant elements of an offense.161The Fourth and Sixth Circuits havealso relied on the dictum in Old Chiefto hold that a defendants stipulationwill not withstand the prosecutions need for evidentiary persuasion.162In

United States v. Queens,the Fourth Circuit held that the government couldnot be forced to agree to a stipulation, because a conditional stipulation

could confuse the jury.163Also, the government, which has the burden ofproving every element of the crime [beyond a reasonable doubt], must havethe freedom to decide how to discharge that burden.164

This argument is reminiscent of Justice OConnors dissent in OldChief.165Justice OConnor, joined by Chief Justice Rehnquist and JusticesScalia and Thomas,166concluded that the name and nature of Old Chiefsprior conviction should not have been excluded for this exact reason.167

The dissenters believe that even though a defendant may make a tacticaldecision not to contest an essential element of the crime, this still will notremove the prosecutions burden to prove that element.168But this is a

misapprehension of the situation that the courts faced in Old Chief andCrowder III. Old Chief did not, as Justice OConnor contends, simplyremain silent and refrain from contesting the status element of the crime inthe hope that the prosecution would fail to prove that element beyond areasonable doubt.169Instead, Old Chief offered to officially stipulate to theelement.170 This official stipulation makes all the difference. As the Old

Chiefmajority notes, a defendants offer to stipulate, even if not acceptedby the government, is still an offer to admita defendants admission is,of course, good evidence.171 Old Chief did not merely make a tactiledecision not to contest the felon-status element of the crime; rather, heoffered to officially stipulate to this element and offered instructions toinform the jury he had committed an offense that would satisfy the status

element of 922(g)(1).172Justice OConnor twists the constitutional rulethat requires the government to prove each element beyond a reasonable

161. Id. (quoting Old Chief, 519 U.S. at 188-89).

162. United States v. Bilderbeck, 163 F.3d 971, 977-78 (6th Cir. 1999).

163. United States v. Queens, 132 F.3d 991, 997 (4th Cir. 1997).

164. Id.

165. See Old Chief, 519 U.S. at 192 (OConnor, J., dissenting).

166. Id.

167. Id. at 200 (citingIn reWinship, 397 U.S. 358, 361 (1970)).

168. Id. at 199 (citing Estelle v. McGuire, 502 U.S. 62, 69 (1991)).

169. Id.at 175 (majority opinion).

170. Id.

171. Id. at 186; see also FED.R.EVID. 801(d)(2)(A) (A statement is not hearsay if . . .

(2) [it] is offered against a party and is (A) the partys own statement.).

172. Old Chief, 519 U.S. at 175-76.


22/22


doubt from a rule protecting the interest of the accused to one helping thegovernment admit prior acts. The full effect of the dictum in Old Chiefcanonly be ascertained as the case law in this area further develops.

VI.CONCLUSION

Simply put, the case law dealing with prior bad acts is a mares nest.Courts have thoroughly misinterpreted the common law in this area,treating FRE 404(b) as a rule of inclusion, rather than exclusion. Instead of

requiring categorical relevancy as the second sentence of FRE 404(b)contemplates, courts have allowed in evidence under a simple relevancystandard. Further, Old Chiefs misplaced dictum has set courts further offcourse. This overreaching by the Supreme Court is indicative of a trend toresolve issues that are simply not before the Court.

Justice Jackson once stated that the government may not use prior badacts even though such facts might logically be persuasive that he is by

propensity a probable perpetrator of the crime.173He noted that prior bad

acts are not excluded because they are irrelevant.174

Rather, these acts areexcluded because it is said to weigh too much with the jury and to sooverpersuade them as to prejudge one with a bad general record and denyhim a fair opportunity to defend against a particular charge.175 Thissentiment was merely a reiteration of the traditional common law notion

against prior bad acts evidence. As the Lord Chief Justice said to aprosecutor who offered a prior bad act of the accused in a murder trial in

Harrisons Case: Hold, what are you doing now? Are you going to arraign

his whole life? Away, away, that ought not to be; that is nothing to thematter.176Federal courts must reevaluate the way prior bad acts evidenceis handled in order to prevent those previously convicted of crimes fromforever wearing the Scarlet Letter177of their past acts.

173. Michelson v. United States, 335 U.S. 469, 475 (1948) (footnote omitted).

174. Id. at 475-76.

175. Id. at 476.

176. Harrisons Trial, 12 How. St. Tr. 834, 864 (Old Bailey 1682).

177. NATHANIEL HAWTHORNE,THE SCARLET LETTER(Brian Harding ed., Oxford Univ.

Press 2007) (1850).

The Perfect Storm: Rule 404(b), Unequivocal Stipulations, and Old Chief’s Dicta on Narrative...

Documents

Transcript of The Perfect Storm: Rule 404(b), Unequivocal Stipulations, and Old Chief’s Dicta on Narrative...