Thinking Outside the Evidence Box: FRE 404(b) and 608(b)

Thinking Outside the Evidence Box: FRE 404(b) and 608(b)

One of the most important trial lawyer skills is the ability to think outside the box.  It’s just as true when planning your presentation as when having to think on your feet at trial.  Your case investigation may unearth evidence of “other bad acts” evidence committed by the other party, which you would love to introduce, but don’t know how it fits within the proof-of-the-claims and defenses framed by the pleadings.  This is when “outside the box” thinking can make your case.  FRE 404(b) and 608(b) can supercharge your proof at trial.  Consider the application of the following rules.

FRE 404(b)

Bad actorRule 404 stands for the general proposition that one cannot introduce character evidence for the sole purpose of showing someone is a “bad person” and acted in accordance with that character in a specific instance.  In other words, evidence that shows their bad character is the reason they committed the crime they are being charged with.  Some refer to this as “character-propensity” evidence.  While barring propensity evidence, Subsection b of this rule permits other “bad act” evidence when those acts go to the issues such as the person’s intent, knowledge or motive, or to show lack of accident or the development of a scheme or plan.  (Note importantly that the rule sets forth non-exhaustive examples of other “bad act” evidence.)  FRE 404(b) is particularly useful for civil plaintiffs, but defendants should not discount its creative use in defense of a case.  FRE 404(b) is particularly useful in intentional tort cases.  For instance, evidence that a civil defendant has sexually harassed other women (i.e. “Me Too” witnesses), has long been accepted as circumstantial proof of intent in an employment case.  Evidence of other fraudulent acts may be critical to prove intent, or a plan, in a civil fraud or commercial tort case.  A creative defense counsel, who can prove a plaintiff committed prior staged accidents, could use FRE 404(b) to prove such a fraudulent injury scheme.  The same can hold true for any kind of serial unfounded claims.

FRE 608(b)

GlanceChartsSometimes, FRE 404(b) just doesn’t fit the facts.  At this point, most trial lawyers give up and move on.  That’s a mistake if the case is pending in Federal Court.  FRE 608(b) may give you a fall back to introduce the “other bad act” evidence.  This rule, in essence, provides that other “bad act” evidence may be admissible on cross-examination, if it goes to the person’s truthfulness.  A classic example would be proof the witness/party understated his income on a tax return.  Some attorneys have tried to prove past marital infidelity, with mixed success, in a similar impeachment attempt. Keep several considerations in mind.

  1. First, FRE 608(b) is a Federal Rule. It has not been adopted by all states.
  2. Second, by the terms of the rule, you are stuck with a witness’ answer in most instances.

You can’t prove the “bad act” extrinsically (i.e. with separate proof), rather, it must be solely the subject of a cross-examination question.  (There is a bit of controversy about whether extrinsic evidence is admissible.  For more on that, take a look at my Quick Guide to Federal Evidence Law.

FRE 403

As useful as FRE 404(b) and 608(b) can be, one must remember that the evidence may be excludable under FRE 403 as prejudicial.  Never assume that this type of evidence will come in; especially, if the other “bad acts” are remote in time.  Consider setting a motion in limine to give the court the opportunity to hear legal arguments in detail, rather than something on the spot in the midst of trial.

At some point during your case preparation phase, you may get stuck trying to figure out how to insert the “other bad acts” of the party opponent into your case.  Consider these rules as a way to get “unstuck” and gain a winning edge.

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