25.4 Other Crimes, Wrongs & Acts; Habit & Routine Practice; Sexual Misconduct Rules
Key Takeaways
- Evidence of other crimes, wrongs, or acts is not admissible to prove propensity but may be admitted for another purpose—such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident—subject to Rule 403 and, on request, a limiting instruction (FRE 404(b)).
- The court admits other-act evidence if a reasonable jury could find by a preponderance of the evidence that the act occurred (Huddleston v. United States), even if the defendant was acquitted of it (Dowling), and in criminal cases the prosecution must give reasonable written pretrial notice stating the permitted purpose and the reasoning supporting it (FRE 404(b)(3)).
- Evidence of a person's habit or an organization's routine practice—a regular response to a repeated, specific situation—is admissible to prove conduct on a particular occasion, whether or not it is corroborated or there was an eyewitness (FRE 406).
- In criminal and civil cases involving sexual assault or child molestation, evidence that the defendant committed another sexual assault or child molestation may be considered on any relevant matter, including propensity, subject to Rule 403 and advance disclosure (FRE 413–415).
- Rule 412 bars evidence of a victim's other sexual behavior or sexual predisposition, with narrow criminal exceptions—another source of physical evidence, prior sexual acts with the defendant offered on consent, and constitutional necessity—and a reverse-403 balancing test in civil cases, after an in-camera hearing.
25.4 Other Crimes, Wrongs & Acts; Habit & Routine Practice; Sexual Misconduct Rules
Evidence of a person's other conduct is dangerous because jurors may conclude that a person who did something wrong before probably did it again. The Rules manage that danger in different ways: Rule 404(b) allows other acts only for non-propensity purposes, Rule 406 treats habits as reliable rather than as character, and Rules 412 through 415 create special rules for sexual misconduct cases.
Non-Propensity Use of Specific Bad Acts: FRE 404(b) (MIMIC)
Under FRE 404(b)(1), evidence of a person's other crime, wrong, or act is inadmissible to prove character propensity. However, under FRE 404(b)(2), such evidence is admissible for non-character purposes.
The MIMIC Acronym
| Non-Propensity Purpose | MBE Application Example |
|---|---|
| Motive | Defendant stole a getaway car to carry out a bank robbery; defendant murdered a witness to eliminate testimony in a pending fraud trial. |
| Intent | In a prosecution for possession of cocaine with intent to distribute, prior drug sales are admissible to prove intent to sell rather than mere personal use. |
| Mistake (Absence of) | In a murder trial where a husband claims his wife accidentally fell down stairs, proof that his two prior wives died from stair falls negates claim of accident. |
| Identity (Modus Operandi) | The prior crime and charged crime share a unique, bizarre, or highly sophisticated "signature" (e.g., robber wore a Darth Vader mask and left a pink carnation). |
| Common Plan or Scheme | The defendant committed a string of burglaries stealing pharmacy security uniforms to prepare for a major warehouse heist. |
| Other recognized purposes | Knowledge (possession of stolen goods/counterfeits), Opportunity, Preparation. |
Procedural Safeguards for Rule 404(b) Evidence
- Substantial Evidence Standard (Huddleston v. United States): The prosecution does not need to prove the prior bad act beyond a reasonable doubt or by clear and convincing evidence. Under Rule 104(b), the court must find that there is sufficient evidence from which a reasonable jury could conclude by a preponderance that the defendant committed the act.
- Rule 403 Balancing: The court must weigh the probative value of the MIMIC evidence against the danger of unfair prejudice.
- Pretrial Notice (FRE 404(b)(3), as amended December 1, 2020): In a criminal case, the prosecutor must provide reasonable notice of any such evidence it intends to offer so the defendant has a fair opportunity to meet it; must articulate in the notice the permitted purpose for which the evidence is offered and the reasoning that supports that purpose; and must give the notice in writing before trial, or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
Habit and Routine Practice (FRE 406)
Under FRE 406, evidence of a person's habit or an organization's routine practice is admissible to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.
- Definition: Habit describes a person's regular, semi-automatic, reflexive response to a specific repeated situation.
- Key Characteristics: Specificity, frequency, and regularity. Look for trigger words on the MBE: "always," "invariably," "every single morning," "automatically."
- Contrasted with Character: Character is a general moral disposition (e.g., "careful driver," "peaceful citizen," "honest businessman"). Habit is a specific, automated behavioral routine (e.g., "always signals before turning into his private driveway," "invariably checks the rear deadbolt twice").
- No Corroboration Required: The court may admit habit evidence regardless of whether it is corroborated or whether there were eyewitnesses.
Rape Shield Legislation & Sexual Assault Propensity Rules
1. The Rape Shield Law (FRE 412)
In any civil or criminal proceeding involving alleged sexual misconduct, FRE 412 excludes:
- Evidence offered to prove that a victim engaged in other sexual behavior; or
- Evidence offered to prove a victim's sexual predisposition.
Criminal Exceptions (FRE 412(b)(1))
In a criminal case, evidence of specific instances of sexual behavior is admissible only to prove:
- Source of Physical Evidence: That someone other than the defendant was the source of semen, injury, or other physical evidence;
- Consent: Specific instances of sexual behavior between the victim and the defendant offered by the defendant to prove consent (or offered by the prosecution); or
- Constitutional Rights: Exclusion would violate the defendant's constitutional rights (e.g., Confrontation Clause bias).
Civil Exception (FRE 412(b)(2))
In a civil case, the evidence is admissible only if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party (reverse Rule 403 balancing).
2. Sexual Assault & Child Molestation Cases: The Propensity Exception (FRE 413–415)
In criminal prosecutions for sexual assault (FRE 413) or child molestation (FRE 414), and in civil cases involving such conduct (FRE 415):
- Evidence of the defendant's commission of any other sexual assault or child molestation is ADMISSIBLE to prove PROPENSITY.
- The prosecution may use the prior offenses to prove that the defendant has a propensity to commit sexual offenses and acted in conformity with that propensity in the charged offense.
- The evidence remains subject to Rule 403 balancing, but FRE 404(a) propensity restrictions are eliminated.
Applying Rules 404(b), 406 & 412–415
Other Acts in Practice
- Identify a proper purpose that does not depend on the inference "once a wrongdoer, always a wrongdoer."
- Confirm the purpose is genuinely at issue. Evidence offered to show intent is weak if intent is not disputed; evidence offered to show identity requires features so distinctive that they point to the same person.
- Check the proof. A reasonable jury must be able to find by a preponderance that the defendant committed the other act (Huddleston). Evidence of conduct for which the defendant was acquitted may still be used, because an acquittal reflects only reasonable doubt (Dowling v. United States, 1990).
- Balance under Rule 403 and give a limiting instruction on request.
- Doctrine of chances: Repeated unusual events—such as several spouses of the defendant dying in similar "accidents"—make innocent explanations less likely and can show absence of accident.
- Intrinsic evidence: Acts that are part of the charged crime itself, or necessary to tell its story, are not "other" acts under Rule 404(b).
- Civil cases and defendants' evidence: Rule 404(b) applies in civil cases (for example, prior fraudulent schemes offered to show intent in a civil fraud case), and a criminal defendant may offer evidence of a third party's similar crimes to show that someone else committed the offense.
Habit Versus Character
| Habit or Routine Practice (Admissible) | Character (Not Admissible to Prove Conduct) |
|---|---|
| Always coming to a complete stop and looking both ways at a particular railroad crossing | Being a "careful driver" |
| A business's routine practice of stamping and mailing outgoing letters every afternoon | Being a "well-organized company" |
| A surgeon's routine of explaining a specific risk to every patient before a particular procedure | Being a "conscientious doctor" |
| Taking the same route to work every morning | Being "reliable" |
Habit may be proved by opinion testimony or by specific instances numerous enough to show a regular practice. Courts are cautious about treating general tendencies—such as frequent drinking or a quick temper—as habits, because they involve judgment and vary with circumstances.
Sexual Assault and Child Molestation Cases (FRE 413–415)
- Scope: Rule 413 applies in criminal sexual assault cases, Rule 414 in criminal child molestation cases, and Rule 415 in civil cases based on either kind of misconduct.
- Any relevant matter: The other acts may be considered for their bearing on any matter to which they are relevant, including propensity. They need not have resulted in a charge or conviction, and attempts and conspiracies are included.
- Disclosure: In criminal cases, the prosecutor must disclose the evidence—including witnesses' statements or a summary of expected testimony—at least 15 days before trial or at a later time the court allows. Rule 415 imposes a similar requirement in civil cases.
- Rule 403: The court still may exclude the evidence if its probative value is substantially outweighed by unfair prejudice.
Rape Shield Procedure (FRE 412)
- Motion and hearing: A party intending to offer evidence under an exception must file a motion at least 14 days before trial (unless the court sets a different time for good cause) describing the evidence and its purpose, serve all parties, and notify the victim. The court must hold an in-camera hearing, and the motion and record are sealed unless the court orders otherwise.
- Civil reputation evidence: In a civil case, evidence of the victim's reputation is admissible only if the victim has placed it in controversy.
- Constitutional necessity: A defendant was entitled to cross-examine an alleged victim about her cohabitation with another man because it supplied a motive to fabricate the accusation (Olden v. Kentucky, 1988).
A defendant was indicted for armed robbery of a jewelry store. The perpetrator entered the store wearing an elaborate Venetian porcelain mask, sprayed lavender-scented aerosol to incapacitate the staff, and escaped on a vintage moped. At trial, the prosecution seeks to introduce evidence that two years earlier, the defendant was convicted of robbing an antique store where the robber wore an identical Venetian porcelain mask, sprayed lavender aerosol, and fled on a vintage moped. The defendant objects that the prior robbery is inadmissible character propensity evidence. The prosecution argues the evidence is admissible to prove identity under FRE 404(b). How should the court rule?
A driver was killed when a train struck his car at a railroad crossing. In a wrongful death action against the railroad, a key issue is whether the driver stopped and looked before crossing. There were no eyewitnesses. The plaintiff offered testimony from the driver's coworker, who rode with him to work every day for five years, that at that particular crossing the driver always came to a complete stop, rolled down his window, and looked both ways before crossing. The railroad objected that the testimony is inadmissible character evidence and is uncorroborated. How should the court rule?
A defendant was prosecuted in federal court for sexually assaulting a coworker. The prosecution offered testimony from another woman that the defendant had sexually assaulted her five years earlier; she had not reported the incident, and no charges were ever filed. The prosecutor disclosed the witness's statement to the defense 30 days before trial and stated that the evidence was offered to show that the defendant has a propensity to commit sexual assault. The defendant objected under Rule 404. How should the court rule?
In a federal prosecution for rape, the defendant claims the victim consented. He offers two items of evidence: (1) testimony that the victim had sexual relationships with several other men in the months before the incident, offered to show that she was likely to have consented; and (2) testimony that the victim and the defendant had a consensual sexual relationship during the year before the incident, offered to prove consent. The defendant complied with the procedural requirements of Rule 412. How should the court rule?