Limiting the Admissibility of 404(b) Evidence
- Admissibility of Post-Offense Misconduct. Evidence of an accused’s crackrelated activities occurring after the charged offense was admissible to show intent and knowledge as to earlier offense. United States v. Latney, 108 F.3d 1446 (D.C. Cir. 1997). But see, United States v. Matthews, 53 M.J. 465 (2000)
(holding that evidence of a hot urinalysis that occurred after the charged wrongful use could not be used to show knowing use on the date of the charged offense).
- Defense Concessions. United States v. Crowder, 141 F.3d 1202 (D.C. Cir. 1998). Case remanded from the Supreme Court in light of Old Chief v. United States, 519 U.S. 172 (1997). In an en banc reversal, a majority of the court held that the defense could not stipulate to uncharged misconduct in an effort to
preclude the government from introducing evidence under Rule 404(b). The
D.C. Circuit said that the evidence was relevant under Rule 401 even though
there may have been other forms of evidence available. The defense cannot force
the government to stipulate, and if the evidence fits an exception under Rule
404(b) and is not unduly prejudicial under Rule 403, then it is admissible in the
form the government wants. Stipulations are not the same as other evidence and
government is not required to sacrifice the context and richness of the evidence
through stipulations. Unless, as in Old Chief, the stipulation deals with the legal
status of the accused and the stipulation gives the government everything they
otherwise would want through use of the evidence. See also United States v.
McCrimmon, 60 MJ 145 (2004) (assuming no overreaching by the government,
evidence of uncharged misconduct, otherwise inadmissible evidence, may be
presented to the court by stipulation and may be considered by the court).
- Uncharged Acts During Sentencing: Admissibility of uncharged misconduct
during presentencing is controlled by Rule 1001(b)(4), not Rule 404(b). Rule
404(b) evidence which may have been admissible on the merits is not admissible
during presentencing unless it constitutes aggravating circumstances within the
purview of Rule 1001(b)(4).
- Effect of an Acquittal on Admissibility of Rule 404(b): In United States v.
Mundell, 40 M.J. 704 (A.C.M.R. 1994), the accused alleged error based on the
admission of uncharged misconduct which had been the subject of a not guilty
finding at a prior court martial. ACMR found the military judge properly applied
Rule 404(b) and 403, noting that the COMA in United States v. Hicks, 24 M.J. 3
(C.M.A. 1987) and the Supreme Court in Dowling v. United States, 493 U.S. 342
(1990) already held that “collateral estoppel does not preclude using otherwise
admissible evidence even though it was previously introduced on charges of
which an accused has been acquitted.”