The Perfect Storm: Rule 404(b), Unequivocal Stipulations, and Old Chiefs Dicta 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 record of 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 two jurists were of the right of the accused to be tried for what he did, not for who he is.2 But modern judges have not heeded history and the language of the Federal Rules of Evidence (FRE). Prior bad acts evidence is simply evidence of a defendants prior history, whether a charged crime or testimony from another person, that the defendant previously committed a crime or other wrong. FRE 404(b) is the template courts use to test the admissibility of prior bad acts.3 The first sentence of FRE 404(b) provides a 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).

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prove criminal propensity.4 However, the second sentence of the rule categorically excepts the use of some prior bad acts for certain admissible purposes including proof of intent, motive, knowledge, etc.5 Modern cases admitting prior bad acts under FRE 404(b) are legion. This trend forces defendants to stipulate to certain elements of crimes to keep this highly prejudicial evidence from the jury. This issue comes up repeatedly in cases where the prosecution offers evidence of a defendants prior drug convictions to prove the intent element of the offense charged.6 This Note will not attack FRE 404(b) generally, but instead takes issue with the modern courts application of it. Modern courts have gone astray because their case law is built on false premises, logically leading to false conclusions. 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 a rule of inclusion.7 The text and common law history refute this application, instead suggesting a rule of exclusion with certain exceptions carved into the second sentence of the rule. The second false premise is treating FRE 404(b) as a standard, granting trial courts broad discretion. FRE 404(b) is better applied as a categorical rule, only allowing the prosecution to offer evidence that fits one of the prescribed categories. The final false premise is predicated on dictum in Old Chief v. United States.8 This dictum subsumes the protection of defendants from highly prejudicial evidence and exalts the prosecutions need for evidentiary richness and narrative integrity.9 The dictum in Old Chief has sent lower courts astray, and there is no telling how far future courts will take this language. Broadly put, Old Chief held that in most felon-status cases (for example, felon in possession of a handgun) where the defendant stipulates to his prior offense, the name and nature of the prior offense should be excluded, as it is unduly prejudicial under FRE 403.10 This Note will explore how a defendants unequivocal stipulation to an element of a charged offense, specifically the intent element, takes that element out of issue, thereby making the evidence inadmissible as a prior bad act under FRE 404(b). A logical and historical reading of the rules and a modest extension of the true holding in Old Chief

Id. Id. See United 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.

4. 5. 6.

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compel this conclusion. Part I of this Note will look at the common law history leading up to the adoption of FRE 404(b). Part II will break down the language of the rule and 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 handling these stipulations. This section will demonstrate that an inclusionary approach has compelled courts to improperly admit prior bad acts after the defendant has offered to concede that element. Part IV will assess Old Chief: the opinions good parts (strict holding of the case), the bad (the dissents misapplication of the prosecutions constitutional burden), and the ugly (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.12 Let us start with first principles: the common law. I. COMMON LAW HISTORY OF PRIOR BAD ACTS EVIDENCE [A] page of history is worth a volume of logic.13 Modern courts have not heeded this aphorism when dealing with FRE 404(b) and prior bad acts evidence. Their ahistorical awareness of the general common law antecedent to FRE 404(b) has opened the dam of prior bad acts, allowing in a flood of prejudicial evidence. Knowledge of the common law doctrine helps shed light on the underlying rationale of FRE 404(b). History has also shown that, unlike modern interpretations, FRE 404(b) should be treated as exclusionary rather than inclusionary. Finally, an historical understanding teaches us why defendants stipulations should prevent the admission of prior 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 common law in the application of evidentiary principles, absent express provisions to the contrary.14 If a rule was intended to deviate from its common law antecedents, the Advisory Committee would have expressed this in the notes.15 Professor Edward Cleary, Reporter of the Advisory Committee, stated that FRE 102, labeled Purpose and Construction, did little to

Id. at 183. United States v. Crowder (Crowder I), 87 F.3d 1405 (D.C. Cir. 1996). The Supreme Court granted a writ of certiorari on Crowder I 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.
11. 12.

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enlighten courts on how to interpret the FRE.16 Rather, courts should use general rules of statutory interpretation and the rules developed at common law to fill in the gaps.17 Because 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.19 In State v. Van Houten, one of the earliest American cases dealing with prior bad acts, the prosecution offered evidence that the accused had previously used forged currency to buy products throughout the town.20 The defendant allegedly used a counterfeit ten-dollar bill to purchase a pair of gloves at a small shop in Trenton.21 The prosecutor offered evidence that the defendant used other counterfeit bills at different shops in Trenton that same night.22 The prosecutions argument rested on the fact that knowledge of the counterfeit bills could not be proved unless the state was allowed to offer evidence that the defendant used counterfeit bills on other occasions that night.23 The defendant argued that these other allegations of passing off counterfeit bills were in no way connected with the crime charged and that this evidence was the basis of another substantive offense, different from the one Van Houten was on trial for.24 Ultimately, the court allowed the evidence based on the prosecutions argumentthat the evidence be admitted to prove the defendant had the requisite knowledge required to prove the offense.25 Notice that neither the prosecution nor the defense argued that the evidence must fit a categorical exception.26 Rather, both sides simply argued 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, 51 HARV. 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.

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analysis: evidence either was or was not relevant to a fact to be proven other than character. This binary analysis eventually evolved into a categorical rule in American courts. It is with this change that Congress enacted FRE 404(b). Beginning around 1840, courts began to admit evidence only if it fell into an exception to the broad rule of exclusion of prior bad acts.28 Two early Massachusetts cases exemplify this shift. In Rowley v. Bigelow, the Massachusetts Supreme Judicial Court held that the evidence was admissible because it went to the defendants intent and fraudulent purpose; that it was a material fact and the principal fact in controversy on which th[e] case rest[ed].29 The court did not rest its holding on some categorical rule of exclusion, but rather found that the evidence was relevant to the issues of intent and fraudulent purpose, neither of which were offered for a criminal propensity.30 Put another way, the evidence was logically relevant and was not offered to suggest character purpose.31 This suggests a broad rule of inclusion similar to the New Jersey case, State v. Van Houten.32 Only ten years later in Commonwealth v. Stone, Chief Justice Shaw, the same author of the Rowley opinion, intimated that a broad rule of exclusion should apply.33 In Stone, the defendant presented a five-dollar bill knowing that the bank issuing the note was insolvent and could not back the bill.34 Chief Justice Shaw stated that the evidence that the defendant had passed off similar bills in the past proved the scienter requirement: that is, he had the required knowledge that the bank was insolvent.35 Before admitting the evidence, Chief Justice Shaw noted that it fit into an exception to the general rule of evidence.36 Unlike Rowley, where a broad rule of inclusion applied, Stone created the necessary condition that the evidence fit into one of the exceptions to the general prohibition of this type of evidence.37 This shift was not an isolated event but occurred frequently in many state courts.38

See Stone, supra note 19, at 1000-04. Rowley v. Bigelow, 29 Mass. (12 Pick.) 307, 316 (1832). Stone, supra note 19, at 1003. Rowley, 29 Mass. (12 Pick.) at 316. 3 N.J. (2 Penn.) 248 (1810). Commonwealth v. Stone, 45 Mass. (4 Met.) 43, 47 (1842). Id. at 44. Id. at 47. Id. Id. See Herman 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
28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38.

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This was the state of the law when Congress enacted FRE 404(b). The question must then be: did Congress intend to codify this categorical rule of exclusion that had developed at common law, or did it intend to revert back to the old inclusionary rule? Looking at the common law history, it is clear that Congress intended courts to retain this rule of exclusion. Neither Congress nor the Advisory Committee Notes say anything to the contrary. The language of FRE 404(b) suggests the same conclusion. II. ANALYTICAL TEMPLATE FOR FRE 404(b) A proper analysis of the text of FRE 404(b) is required to understand why an unequivocal stipulation to an element of a crime precludes admission of prior bad acts. First, the relevant language of FRE 404(b) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, 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 rule of inclusion, meaning evidence of this type can be used so long as it is not offered for a character propensity argument.40 This incorrect reading of the rule leads courts to the false conclusion that a defendants stipulation to an element of the crime charged does not take the element out of issue. The text actually supports the opposite conclusion, that FRE 404(b) be treated as a rule of exclusion. A helpful way to look at FRE 404(b) is to divide it into two distinct parts: the first is the prefatory sentence and the second is the operative sentence. The prefatory sentence announces a purpose:41 evidence may not be offered for strictly character propensity purposes. As written, the prefatory sentence in FRE 404(b) requires a total ban on character evidence for the purpose of making a character propensity argument. This is not the only 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.); see also 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).

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Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.42 Thus, the first sentence, or the prefatory sentence, of FRE 404(b) merely reiterates the general ban on character evidence.43 It provides a lens for analyzing prior bad acts. The operative sentence, on the other hand, lays out instances in which prior bad acts may be admissible.44 The operative sentence makes FRE 404(b) a rule rather than a standard. Congress created specific exceptions, including intent, motive, absence of mistake, etc.45 Congress balanced the interests of probative value and prejudicial effect of prior bad acts and laid out categories evidence must fall into. Unlike FRE 403 where the courts do the balancing, Congress already balanced the interests by embedding in the first sentence of FRE 404(b) its conclusion that criminal propensity arguments should not be allowed.46 The Advisory Committee Notes to FRE 404(b) create a hurdle to this conclusion. The notes to FRE 404(b) state that no mechanical solution can be offered for handling prior bad acts.47 Rather, the note asserts, courts must determine under FRE 403 whether the danger of unfair prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.48 However, the Advisory Committee Notes should not be the primary source of the courts interpretation of FRE 404(b). The language of the rule, not the Advisory Committee Notes, is the only source that has been authoritatively adoptedby [the] Court, or by Congress if it makes a statutory change.49 The notes can have a persuasive effect on a courts analysis, but they are not authoritative.50 Though the notes may argue that no mechanical solution is offered,51 courts need to come to a more coherent analysis of FRE 404(b) and should not solely rely
FED. R. EVID. 404(a). FED. R. EVID. 404(b). Id. Id. Such as in FRE 404(b) does present a problem to this analysis, but one that can adequately be explained. Common law courts have always had the discretion to modify rules over time. See OLIVER WENDELL HOLMES, THE COMMON LAW 8 (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881). The words such as merely allow courts to develop new categories as required, but does not, however, give these courts unlimited license to allow in evidence not listed in the second sentence in an ad hoc fashion. See id. 46. FED. R. EVID. 404(b). 47. FED. R. EVID. 404(b) advisory committees note. 48. Id. (citing M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 IOWA L. REV. 325, 325 (1956)). 49. Tome v. United States, 513 U.S. 150, 167 (1995) (Scalia, J., concurring). 50. Id. 51. FED. R. EVID. 404(b) advisory committees note.
42. 43. 44. 45.

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on the vagaries of FRE 403 balancing. Further, the common law and the statutory language should take supremacy over the Advisory Committee Notes. 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 order to show action in conformity therewith. It may, however, be admissible for any other purpose other than proving the character of the person in order to show action in conformity therewith. But this is not how FRE 404(b) was written. Congress prescribed certain categorical exceptions to the ban on character evidence, exceptions long developed at common law. Further supporting the notion that FRE 404(b) is to be read as a rule of exclusion, rather than inclusion, is that FRE 404(b) was intended to operate as a rule rather than a standard. To understand whether FRE 404(b) was intended to be rule-like or standard-like is to understand how the courts should approach this evidence. Contrasting FRE 401, which is clearly a standard, against FRE 404(b) underscores the notion that FRE 404(b) is better defined as a rule. Under FRE 401, a court need only determine that evidence has any tendency to make the existence of any fact . . . more probable or less probable than it would be without the evidence.52 To put the point differently, a court analyzing relevance under FRE 401 asks: Does learning of [the] evidence make it either more or less likely that the disputed fact is true?53 This is arguably the lowest evidentiary standard utilized by courts. The old saw, [a] brick is not a wall, is as good of a summation as can be given to describe how low the burden is.54 A piece of evidence need not meet the standards of either preponderance of the evidence or beyond a reasonable doubt, as is required at trial, but simply must prove that the evidence will make the existence of a fact to be proven more or less probable.55 FRE 404(b), on the other hand, requires more than just simple relevancy.56 The Advisory Committee Notes to FRE 401 call attention to the divergent analyses performed under FRE 401 and 404(b):
An enormous number of cases fall in no set pattern, and [Rule 401] is

FED. R. EVID. 401. 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.

52. 53.

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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 threshold burden of proving relevancy under FRE 401, there can be no strict pattern of analyses employed to determine whether a piece of evidence is relevant.58 However, under FRE 404(b), there are distinct categories of purposes for which the evidence may be offered.59 Though the list of permissible purposes is neither mutually exclusive nor collectively exhaustive, courts have created clear mechanisms for handling these types of evidence.60 FRE 401 and 403 closely resemble standardsthey allow courts to consider all the relevant factors under the circumstances, while always keeping in mind the fundamental reasons these standards were created (e.g., need for the jury to hear relevant evidence balanced with the possibility of excluding prejudicial evidence). Congress placed the responsibility of balancing these factors with the courts. FRE 404(b), on the other hand, more closely resembles a rule.61 Congress balanced the relevant factors and created categories that evidence must fall into, captur[ing] the background principle or policy in a form that from then on operates independently.62 Unlike FRE 403, where the court does the balancing, Congress embedded within FRE 404(b) its own conclusion on the balancing: if the prior bad act does not fit within one of the prescribed categories, the evidence is to be excluded.63 Finally, to understand why FRE 404(b) should be treated as an exclusionary rule, rather than as an inclusionary rule, is to understand the American system of criminal justice as a whole. It would be quite anomalous to have such an inclusionary rule for prior bad acts in a system

FED. R. EVID. 404(b) advisory committees note. Id. 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 triggering facts.). 62. Id. 63. FED. R. EVID. 404(b).

57. 58. 59.

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that prefers having the guilty go free over having the innocent convicted.64 An inclusionary rule tips the scales against the defendant. The courts enter the analysis with an eye toward admitting rather than excluding the evidence. To recap, FRE 404(b) should be treated as a rule of exclusion, rather than inclusion. This means that evidence must fall into one of the exceptions 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 the permissible purposes laid out by Congress in the second sentence of FRE 404(b). Some argue that the language such as in FRE 404(b) is merely illustrative, not exhaustive, and that prior bad acts can be offered for anything except criminal propensity.65 The such as language, however, can be explained by understanding the growth of the common law in general. The term such as does not contemplate the courts allowing in evidence 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 courts misapprehension of the rule has had a great effect on the admission of prejudicial evidence. III. THE DILEMMA OF AN INCLUSIONARY APPROACH TO FRE 404(b) Formulating FRE 404(b) as a rule of inclusion has a significant effect on how courts treat a defendants offer to concede the intent element of the charged offense. This dilemma plays out in the federal circuit courts on a daily basis. The circuits are split into three loose camps. The Fourth, Sixth, Seventh, and Ninth Circuits have refused to apply a categorical rule to these questions, instead providing trial judges broad discretion when determining the admissibility of FRE 404(b) evidence.66 The Third and Fifth Circuits have required a stricter showing of necessity by the prosecutor when the defendant concedes an element.67 The 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 ENGLAND 352 (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

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Eighth, and Eleventh Circuits have taken the strictest approach, holding that a defendants stipulation to an issue removes it from a case, therefore requiring that prior bad acts be excluded.68 The D.C. Circuit fell into this last group until Crowder II was vacated and remanded.69 The Fourth Circuit has adopted one of the loosest interpretations of FRE 404(b). In obvious distaste for the prohibition against admitting prior bad acts, the court states that FRE 404(b) is designed to exclude evidence that many both within and without the legal system intuitively find powerful and useful.70 The common law and the text of FRE 404(b) require the element that the prosecution offers the evidence for be an actual issue, meaning it is actually in dispute. In direct contradiction to this, the Fourth Circuit does not require this evidence to be in dispute.71 Moreover, trial courts need not say for what purpose the evidence is being admitted.72 By formulating the test as inclusionary, the Fourth Circuit turns the analysis on its head. Instead of requiring the evidence to meet one of the categories listed 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 this formulation. First, this reliance on simple relevancy is a reversion to the any tendency standard of FRE 401. Congress did not intend such a regression. Reliance on simple relevancy would make the second sentence of FRE 404(b) superfluous. Second, a prior bad act is necessary under Fourth Circuit law if it is an essential part of the crime charged or if it furnishes part of the context of the crime.74 This standard could be construed to admit 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. (quoting Rawle, 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)).

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evidence if it furnishes part of the context of the crime.75 This standard is a boon to prosecutors in the Fourth Circuit, who, through their own powers of imagination, should be able to argue that most prior bad acts will furnish the 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 an attempt to purchase cocaine.76 Prior to trial the accused moved to prevent testimony of four government witnesses who would testify that Brown bought and sold drugs to them in the past.77 The accused was never convicted, and was not on trial, for these allegations.78 The prosecution offered 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 he had intentionally done so in this case.79 The defendant attempted to concede the intent element of the crime in order to keep this prejudicial evidence from the jury.80 The court dismissed this 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 a total misapprehension of what Rule 404(b) envisions. The D.C. Circuit presents 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 a defendants concession to intent. In that case the United States Court of Appeals for the D.C. Circuit was presented with the question, what effect a defendants unequivocal offer to concede elements of a crime has on the admissibility of prior bad acts evidence under Federal Rule of Evidence 404(b)[?]82 Crowder I was a consolidated case with two defendants facing drug charges.83 The first defendant, Davis, was charged with intent to distribute crack 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 gave the seller twenty dollars and was instructed to wait while the seller went to get the drugs.86 The agent was then directed to pick up the drugs from a

75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86.

Id. United States v. Brown, 34 F.3d 569, 571 (7th Cir. 1994). Id. at 572. Id. Id. at 572-73. Id. at 573. Id. (citing United States v. Chaimson, 760 F.2d 798, 805 (7th Cir. 1985)). United States v. Crowder (Crowder I), 87 F.3d 1405, 1407 (D.C. Cir. 1996). Id. Id. Id. Id. at 1407-08.

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nearby windowsill.87 The agent broadcasted the identities of the sellers to the other agents.88 The other agents stopped two individuals fitting the description.89 Davis 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 government informed Davis that it intended to introduce prior bad acts evidencethree prior cocaine salesto prove knowledge and intent.92 At trial, Davis offered in writing and orally that he would stipulate to both knowledge and intent, leaving only the element of possession left for the government to prove.93 After performing an FRE 403 balancing, the district court admitted the prior bad acts.94 Davis was subsequently convicted on both counts against him.95 The second defendant, Crowder, was charged with possession with intent to distribute crack cocaine and heroin.96 The governments witnesses testified that three officers observed Crowder give an unidentified man a small object for cash.97 A chase then ensued, during which Crowder purportedly threw a brown paper bag, containing ninety-three bags of crack and thirty-eight bags of heroin.98 Crowder argued at trial that he never possessed the paper bag.99 Before trial, the prosecution informed Crowder that it intended to introduce Crowders prior drug conviction into evidence.100 Crowder objected to introduction of this evidence, instead offering to stipulate to the other elements of the offense, intent and knowledge, leaving only possession for the prosecution to prove.101 The district court admitted the prior bad acts evidence and Crowder was later convicted.102 On appeal, the D.C. Circuit ultimately ruled that the prior bad acts were

87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102.

Id. at 1408. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. at 1408-09. Id. at 1409.

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impermissibly admitted.103 Surveying the circuits that had considered this question, the D.C. Circuit found the approach used by the Second, Eighth, and Eleventh Circuits most compelling.104 In order for prior bad acts to be admitted, 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. Circuit reasoned that a defendants offer to concede certain elements of an offense (in this case knowledge and intent) combined with instructing the jury that the government is relieved of its burden on these elements, will give the government everything it needs to prove the elements, all doing so without risking prejudice to the defendant.106 The court then laid out an analytical framework for handling an offer to stipulate to an element: (1) an offer to concede an element must be unequivocal, (2) the defendant may not later contest the conceded element, and (3) a jury instruction must be given that clearly informs the jury that they need only find the contested elements.107 This is a workable framework, taking into consideration both the interests of the defendant and the prosecution. The most important aspect of the Crowder II decision was the application of the exclusionary rule. Because the 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 to the Fourth and Seventh Circuits approach, this is how the exclusionary rule should function. Taking a look at the circuit landscape, some courts were properly dealing with prior bad acts and others were not. Then Old Chief was decided.108 The holding of the case certainly makes sense. However, the dictum in Old Chief is where the problem lies. The scales were already tipped in favor of the prosecution before Old Chiefnow even more so.

Id. at 1410. Id. 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
103. 104. 105.

[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.).

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Old Chief can be interpreted in many ways. The confusion surrounding this case can be cleared up by looking strictly at its holding. In most felonstatus cases, the prosecution must accept a stipulation to the prior felony, as evidence of it is unduly prejudicial to the defendant.109 The Court made clear in its opinion that its holding only controls proof of felon-status cases.110 After the Court disposed of the case on the merits, it went into a long discussion about the prosecutions need for narrative integrity and evidentiary richness.111 This needless, and at points illogical, dictum hampers the actual holding of the case. A. Old Chief: The Facts Old Chief involved the prosecution of Johnny Lynn Old Chief under 18 U.S.C. 922(g)(1) for possession of a firearm with a prior felony conviction.112 In order to prevail the government was required to show that Old 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 prison sentence of more than one year.113 Old Chief had in fact committed an earlier crime of assault causing serious bodily injury, bringing him within the statutes reach.114 Understandably, Old Chief wanted to keep the name and nature of this offense away from the jury. He moved to keep the government from mentioning any part of the prior conviction except to state that he fell under the prior-felon-status element.115 Old Chief agreed to stipulate to this fact.116 The government refused to stipulate, insisting instead on the right of the prosecutor to prove [the] case his own way.117 The district court agreed, stating that if [the prosecutor] doesnt want to stipulate, he doesnt have to.118 The evidence of Old Chiefs prior conviction, including the nature of the offense and his sentence, was admitted, and the jury found Old Chief guilty.119 Old Chief appealed.120 The Ninth Circuit upheld the district
Id. 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. at 177. 118. Id. (citation omitted). 119. Id. 120. Id.
109. 110.

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courts ruling, stating that [r]egardless of the defendants offer to stipulate, the government is entitled to prove a prior felony offense through introduction 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 granted Old 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 Chiefs argument that the name and nature of his prior conviction became irrelevant once he offered to stipulate to the felon-status element of 922(g)(1).124 Relying on the text and the Advisory Committee Notes to FRE 401, the Court found the likelihood that Old Chief fell under the felon-status element was more probable with the admission of the name and nature of his prior felony.125 Because proof of his prior conviction met FRE 401 requirements, the evidence was deemed relevant.126 Next, the majority analyzed whether the evidence was unduly prejudicial under FRE 403.127 The Court first referred to an island theory, in which the probative value and prejudicial effect of a piece of evidence is looked at in total isolation.128 The opinion noted how this theory would produce odd results, because if evidence was looked at in isolation it would afford the 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 be under FRE 403. The Court states that lower courts should not look at the evidence in isolation, but should evaluate the degrees of probative value
Id. (citing United States v. Breitkreutz, 8 F.3d 688, 690 (9th Cir. 1993)). Id. (citing Breitkreutz, 8 F.3d at 691-92). Id. Id. at 178. 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.
121. 122. 123. 124. 125.

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and unfair prejudice not only for the item in question but for any actually available substitutes as well.130 The opinion goes on to say that, [i]f an alternative were found to have substantially the same or greater probative value 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 its discounted probative value were substantially outweighed by unfairly prejudicial risk.131 The Court recognized that in most instances where a defendant offers to stipulate, it will have the same probative value as the purported prejudicial evidence.132 In Old Chiefs case, his offer to stipulate to the predicate offense had the same or greater probative value of proving this element of the crime. This basic holding in Old Chief is certainly logical: a defendant can 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. It is hard to fault the reasoning surrounding the holding of this case. But the majority went further. After the Court disposed of the case on the merits, the opinion took a turn, going into a long discussion about the prosecutors narrative integrity and its need for evidentiary richness.134 Undoubtedly, these passages are pure dictum, have no effect on the disposition of the case, and undermine the true holding.135 There has been an alarming trend of courts over the years to go beyond the dispute with which they are confronted and comment on issues not properly 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 the winner. 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

Id. at 182. Id. at 182-83. Id. at 191. Id. at 174. Id. at 183. Justice Souters opinion in Old Chief exemplifies the modern Courts use of extended dictuma trend that is troubling beyond this particular instance. See James 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 Chief as an utterly specious makeweight, and that it appeared that the Court had forgotten the actual question under discussion.).
130. 131. 132. 133. 134. 135.

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Applying this analysis to Old Chief, the proposition in question, the supposed dictum, is the Courts lengthy discussion about the prosecutions need for narrative integrity and evidentiary richness.137 If we were to remove this reasoning from the Courts opinion, would the result have been different? Absolutely not. Removing this proposition would actually strengthen Old Chiefs case. If the Court did not consider the prosecutions need for narrative integrity, the balance would have come down on the side of Old Chief even more significantly. The Courts theory that a syllogism is not a story and that the prosecution needs to tell a convincing tale has allure at first glance.138 It has been proven that jurors tend to understand evidence best if told as a story.139 But courts are allowing this story to be told at great cost to the defendant. The need for a story should never outweigh the highly prejudicial nature of prior bad acts. There is always the argument that higher courts need to lay down broad principles in order to give direction to lower courts that confront similar questions. This can easily be countered with Chief Justice Robertss apt saying: If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.140 In Old Chief, it was not necessary for the Court to discuss in length the narrative integrity required by the prosecution; thus it was not necessary to go further. For the Court to say that in most instances the narrative integrity would override the protection against prejudicial evidence is to say too much. The Court should have tethered itself to the facts it was presented. This dictum in Old Chief proved fatal no less than one year after it was handed down, where the Court vacated the D.C. Circuits decision in United States v. Crowder II.141 V. OLD CHIEFS HOLDING SHOULD NOT HAVE COMPELLED VACATION OF CROWDER I An order to vacate the judgment of a lower court and remand the matter back to the lower court has been described as [t]he most puzzling mode of disposition in the Supreme Courts repertory.142 There 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 at http://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

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notions as to what a vacation means. Some courts believe that a vacation merely means that the lower court must reconsider the case in light of the new Supreme Court decision, but is not obligated to a certain outcome.143 One judge stated that if the Supreme Court had wanted to reverse the decision, it could and would have said so.144 Another judge disagrees stating, The Supreme Court was seeking to be gentle with us but there is . . . no mistaking what they expected us to do. The Supreme Court thought [the new decision] both relevant and dispositive.145 The vacation of Crowder I could signify many things. The Crowder III court, reviewing its earlier decision, stated that the Crowder I decision rested upon the proposition that once a defendant offered 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 Chief decision, the theory of Crowder I fails.147 The majority, following the decision in Old Chief, stated that evidence need not be 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 403 balancing, and not on a strict theory of admissibility under FRE 404(b).149 The majority laid down, in no uncertain terms, a holding that runs counter to 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 one circumstancefor the purpose of proving that a persons actions conformed to his character.151 As shown above, this is a misapprehension of what the common law and the text of the rule allows. Evidence must fit into 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. See id. 149. See id. 150. Id. at 1209. 151. Id. at 1206 (citing United States v. Jenkins, 928 F.2d 1175, 1180 (D.C. Cir. 1991)).

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order to be admissible. This was the courts first misstep. Then the majority harvested the dictum planted in Old Chief. The court echoed the narrative integrity theme espoused in Old Chief: that is, that it would confuse the jury and make them wonder why certain evidence is not being put forth.152 The Crowder III majority quoted all the familiar lines from Old Chief, that a syllogism is not a story, that jurors may well wonder what they are being kept from knowing, and that jurors who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters.153 It is perfectly reasonable that a juror be suspicious when evidence is not offered for a disputed matter.154 But that is not the situation the court faced in Old Chief or Crowder III. Because the defendant offered to stipulate to the intent element, it was not in dispute.155 It has been noted that it would be quite absurd to suggest that a jury is . . . apt to penalize a litigant who offers no evidence to prove a point that was admitted in open court by his adversary[.]156 Further, [n]o sane jury would ever penalize the prosecution for not offering evidence on a point that the defendant has already conceded.157 It would actually hurt the prosecution if the jury believed the prosecution was piling on cumulative evidence. The effect of the dictum in Old Chief is not solely limited to Crowder III. In United States v. Walker, the Eighth Circuit commented that the dictum in Old Chief signaled that in most instances, the prosecution is entitled to prove its case as it sees fit, and a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case against him.158 The Seventh Circuit, in United States v. Williams, was also faced with a defendants offer to stipulate to knowledge and intent.159 The court held that Old Chief counsels that this type of stipulation does not render inadmissible the prosecutions evidence of prior crimes.160 The court picked up on the narrative integrity argument, stating that allowing the defendant to stipulate to intent would hinder unfairly the prosecution by breaking the natural sequence of narrative evidence and would render

Id. at 1207. Id. (quoting Old Chief v. United States, 519 U.S. 172, 189 (1997)). 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.
152. 153. 154.

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prosecutors unable to meet the jurys expectations of proof regarding important elements of an offense.161 The Fourth and Sixth Circuits have also relied on the dictum in Old Chief to hold that a defendants stipulation will not withstand the prosecutions need for evidentiary persuasion.162 In United States v. Queens, the Fourth Circuit held that the government could not be forced to agree to a stipulation, because a conditional stipulation could confuse the jury.163 Also, the government, which has the burden of proving every element of the crime [beyond a reasonable doubt], must have the freedom to decide how to discharge that burden.164 This argument is reminiscent of Justice OConnors dissent in Old Chief.165 Justice OConnor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas,166 concluded that the name and nature of Old Chiefs prior conviction should not have been excluded for this exact reason.167 The dissenters believe that even though a defendant may make a tactical decision not to contest an essential element of the crime, this still will not remove the prosecutions burden to prove that element.168 But this is a misapprehension of the situation that the courts faced in Old Chief and Crowder III. Old Chief did not, as Justice OConnor contends, simply remain silent and refrain from contesting the status element of the crime in the hope that the prosecution would fail to prove that element beyond a reasonable doubt.169 Instead, Old Chief offered to officially stipulate to the element.170 This official stipulation makes all the difference. As the Old Chief majority notes, a defendants offer to stipulate, even if not accepted by the government, is still an offer to admita defendants admission is, of course, good evidence.171 Old Chief did not merely make a tactile decision not to contest the felon-status element of the crime; rather, he offered to officially stipulate to this element and offered instructions to inform the jury he had committed an offense that would satisfy the status element of 922(g)(1).172 Justice OConnor twists the constitutional rule that requires the government to prove each element beyond a reasonable

Id. (quoting Old Chief, 519 U.S. at 188-89). United States v. Bilderbeck, 163 F.3d 971, 977-78 (6th Cir. 1999). United States v. Queens, 132 F.3d 991, 997 (4th Cir. 1997). Id. See Old Chief, 519 U.S. at 192 (OConnor, J., dissenting). Id. Id. at 200 (citing In re Winship, 397 U.S. 358, 361 (1970)). Id. at 199 (citing Estelle v. McGuire, 502 U.S. 62, 69 (1991)). Id. at 175 (majority opinion). Id. 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.
161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171.

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doubt from a rule protecting the interest of the accused to one helping the government admit prior acts. The full effect of the dictum in Old Chief can only 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 relevancy standard. Further, Old Chiefs misplaced dictum has set courts further off course. This overreaching by the Supreme Court is indicative of a trend to resolve issues that are simply not before the Court. Justice Jackson once stated that the government may not use prior bad acts even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.173 He noted that prior bad acts are not excluded because they are irrelevant.174 Rather, these acts are excluded because it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.175 This sentiment was merely a reiteration of the traditional common law notion against prior bad acts evidence. As the Lord Chief Justice said to a prosecutor 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 the matter.176 Federal courts must reevaluate the way prior bad acts evidence is handled in order to prevent those previously convicted of crimes from forever wearing the Scarlet Letter177 of their past acts.

Michelson v. United States, 335 U.S. 469, 475 (1948) (footnote omitted). Id. at 475-76. Id. at 476. Harrisons Trial, 12 How. St. Tr. 834, 864 (Old Bailey 1682). NATHANIEL HAWTHORNE, THE SCARLET LETTER (Brian Harding ed., Oxford Univ. Press 2007) (1850).

173. 174. 175. 176. 177.