The fight to keep out evidence of prior bad acts often leaves defendants (and their counsel) feeling battered and beaten – and sometimes cheated. It is anybody’s guess whether this will change in the coming months when the Seventh Circuit hears en banc a case asking whether to change the test for determining the admissibility of evidence under FRE 404(b). See U.S. v. Gomez, No. 12-1104 (7th Cir. June 14, 2013).
Until that time, however, the Seventh Circuit continues to address the admissibility of FRE 404(b) evidence, and two cases from last month are worth mentioning.
In one corner, we have U.S. v. Torres-Chavez, No. 13-1340. In Torres-Chavez, the Seventh Circuit opened the door just a little bit wider for the future admission of evidence under FRE 404(b) by effectively eliminating the requirement that evidence of prior bad acts be sufficient enough to support a jury finding that the defendant actually committed the prior act. In short, the Court held that the uncorroborated testimony of a cooperating witness, who says that the prior bad act occurred, can be sufficient to meet the requirements of FRE 404(b). Expect prosecutors to borrow the language from Torres-Chavez in their 404(b) motions in limine for years to come.
Meanwhile, in the other corner, we have U.S. v. Reed, No. 12-3701, which provides a slight ray of hope for defendants. In Reed, the Seventh Circuit concluded that a defendant’s prior arrest for possession of heroin, in which the heroin was wrapped in tin foil (as it was in the instant case), was inadmissible propensity evidence. The Seventh Circuit rejected the view that the “similar packaging” of the heroin in both cases constituted evidence of knowledge, intent, and lack of mistake, because almost all heroin is sold in tin foil packets on the streets. The lack of sufficiently distinguishing characteristics in the prior arrest made clear that the actual purpose of the evidence was to show a pattern of conduct, which is another way of saying propensity. Ultimately, because Reed was a bench trial, the conviction was affirmed. But the Court warned that if the matter were tried to a jury, the result may have differed.