Federal Crimes: Can Prosecutors Use Similar Act Evidence?

One of the hardest questions lawyers need to answer in a federal criminal case is whether the prosecutor can use “similar act” or “other crime” evidence. Sometimes, the law permits the prosecutor to introduce evidence that on a time OTHER than the one charged in the indictment, the defendant did something similar to what he or she is charged with. I discussed this issue a little bit the other day in an article in the Atlanta Journal and Constitution. There are three major problems in this area: 1) many lawyers do not really know the law, 2) the judge lets the prosecutor introduce such evidence, but the prosecutor then makes improper use of the “similar act,” and 3) the lawyer fails adequately object to the evidence, which is a shame because many times the court of appeals will reverse a conviction if the evidence was either improperly admitted or incorrectly used.

In federal court, this issue for the most part is controlled by Federal Rule of Evidence 404(b). Under this rule, evidence of “other crimes” is NOT admissible to show the defendants character. This part of the Rule prohibits “propensity” evidence, which is a fancy way of saying that just because a person did something on one occasion this does not mean he did it again another time. However, the prosecutor CAN use “other crimes” evidence to show intent, motive, identity or lack of accident. In other words, if the defendant intended to sell drugs one day, this makes it more likely he intended to do so on another occasion he had drugs in his possession. If the defendant knew he was carrying a gun one day, this makes it more likely that is was not some sort of mistake he had a gun in his vehicle on another occasion. Unfortunately, too many lawyers are not familiar with the ins and outs of the Federal Rules, and they make mistakes that can harm their clients.

Besides not knowing the rules, some lawyers fail to recognize when the prosecutor makes improper use of such evidence. For example, if a judge allow evidence of another occasion when the defendant had a gun in his car, this does not allow the prosecutor to argue that the defendant is a gun dealer. Remember, in the examples set out above, there are limited uses for “other crimes” evidence, and such evidence cannot be used to show “propensity.”

When a prosecutor is making improper use of such evidence, the defense attorney needs to recognize it, object, and then most importantly, the lawyer needs to “perfect” his objection. This means that the attorney has taken the proper steps to preserve this issue for appeal. This is extremely important, in that the courts of appeals sometimes reverse convictions when prosecutors make improper use of “other crime” evidence. Our lawyers regularly take over cases where these issues have not been adequately “perfected” by the first attorney, which makes it even more difficult to assist the client.