What is 404(b) evidence and how can it harm… and help you? This kind of evidence is commonly used for the prosecution to show that the defendant has engaged in conduct that is similar to the charges that are against them. However, there are various scenarios where this kind of evidence can aid you in your defense. Sexual assault and domestic violence are the most common types of cases for this kind of evidence but it more generally applies to evidence of other crimes, wrongs, or acts of any person.
What is 404(b) evidence?
404(b) evidence is a rule of criminal evidence to show other wrongs, acts, or crimes. However, this evidence is not submitted for the purpose to prove the bad character of a person, it does have a much larger scope. Evidence submitted under this rule is to show:
1) proof of motive,
8) or absence of mistake, entrapment, or accident.
The timing of the act or wrong that is trying to be submitted into evidence is not as important as you would think. The crime or act being submitted does not have to come before the crime being charged, it can be an act that happened after the charges that you are facing. This is important because it forces people to have to be conscious of their behaviors even after someone is charged with a crime.
404(b) evidence doesn’t have to be an act or crime that lead to a conviction. This is extremely important because it goes to the threshold of what is allowed into the courtroom and what is not. All it takes is an accusation that someone has done something similar for the evidence to be submitted to the court. You don’t need paperwork or proof, all you need is someone to come in and say that the defendant (or the victim) has engaged in acts similar to the current charges.
Test of Admissibility
In order for this rule to be relevant evidence, there must be sufficient reason that the person committed the crime and that there is a reason other than to make a statement of someone’s character. Once it is established, again this can be as simple as someone accusing you, that the defendant committed the crime, then there is an analysis that takes place to see if the information is relevant under the 404(b) rule of evidence. This analysis looks like the diagram below.
A really good example of when to use the 404(b) evidence in your favor is if you are charged with domestic violence. Yes, if you have been arrested for this kind of charge multiple times than the prosecution is most likely going to use these other charges against you. However, if you are charged with domestic violence and the victim has been charged with domestic violence against you, then that can really help with your defense. It might even be reason enough for the district attorney to dismiss your case altogether because it would make for a messy trial.
Any and all evidence that will be submitted to trial is up to the discretion of a judge. If the judge doesn’t think that your evidence meets the above circumstances than he has the ability to keep that information out of the courtroom. You also should keep in mind that you can’t just throw information into court in order to make the other party look bad. Every case is unique, you must contact an attorney to see if a 404(b) motion is right for you.
By Shannon Lynch