Circuit Consensus: Second Circuit Joins Seven Circuits: Propensity Evidence Is Not Limited To Criminal Acts Or Wrongs

Second Circuit Joins First, Fourth, Fifth, Sixth, Seventh, Tenth and Eleventh in concluding that other act evidence need not be criminal or even wrongful if it tends to impugn a defendant's character to the degree that a jury, learning of the other act evidence, would believe that the defendant had a propensity to engage in wrongful and illegal conduct, in United States v. Scott, __ F.3d __ (2d Cir. April 6, 2012) (No. 10–3978–cr).

While FRE 404(b) deals with the admissibility of evidence of "crimes, wrongs, or other acts," are these other acts necessarily only "bad" or "criminal acts"? In the late 1970s, the circuits began to consider the scope of FRE 404(b), finding that FRE 404(b) evidence need not involve bad or criminal actions in order to be propensity evidence. Over fourty years later, the Second Circuit has just considered this issue and adopts the position of other circuits that such acts need not be criminal or wrong in order to be considered propensity evidence.

In the case, two police detectives (Moran and Geary) testifying against the defendant in his trial for distribution of a controlled substance gave testimony that prior to the arrest of the defendant, "they recognized" him from "prior interactions." The defendant was convicted and in his appeal contended that admitting the detective's testimony as to prior interaction with the defendant was not offered for a proper purpose under FRE 404(b), as it was in effect propensity evidence whose value in the case had been to impugn his character to the degree that the jury, in learning of the other act evidence, would believe that the defendant had a "propensity" to engage in the charged crime.

In taking a position on the question, the Second Circuit examined the logic and operation of FRE 404(b):

The district court's determination that the testimony was admissible because the testimony would not lead jurors to conclude Scott had previously been arrested was ... in error. Even if the jury would not reach that conclusion based on the [detectives'] recognition testimony ... Geary and Moran's prior contacts with Scott would certainly 'bear adversely on the jury's judgment of his character.'
Scott, __ F.3d at __ (quoting United States v. Cooper, 577 F.2d 1079, 1088 (6th Cir. 1978)).


The Second Circuit explained why this was prior act evidence was inadmissible:

The difference between a police officer's mere observations of a defendant in an area and testimony that two different detectives had had occasion to speak to him up to five times and for up to twenty minutes (and on at least some different occasions) is substantial. That a police officer has merely seen a person, even repeatedly and even in a drug-prone location, may simply suggest that the person lives or works near the officer's daily patrol; in that sense, it is not evidence of any “act” at all. But that two detectives have not only seen but spoken on multiple, lengthy occasions to a defendant indicates to a jury that he is, at a minimum, the sort of person who warrants a level of police observation to which law-abiding citizens are unaccustomed. ... That is especially true since no ... innocent explanation for Scott's significant contacts with the police could be offered. A jury hearing this testimony would conclude that Scott was a person with a propensity to engage in wrongful, criminal or otherwise unusual behavior that would attract the attention of the police, and not, ... merely a person who had been seen by a police officer at some point in his life. This testimony falls well within Rule 404(b), which prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character.
Scott, __ F.3d at __ (quoting United States v. Cooper, 577 F.2d 1079, 1088 (6th Cir. 1978)).

In taking this position, the Second Circuit noted that it joined a list of other circuits that had previously considered this question, including:

  • First Circuit: United States v. Devin, 918 F.2d 280, 286 (1st Cir. 1990) (holding the “disjunctive terminology [of Rule 404(b) ] shows unmistakably that [it] reaches conduct which is neither criminal nor unlawful so long as the conduct is probative of, and revelatory as to, a permitted purpose”)
  • Fourth Circuit: United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988) (“To fall within the scope of Rule 404(b), an act need not be criminal, so long as it tends to impugn a defendant's character.”)
  • Fifth Circuit: United States v. Kendall, 766 F.2d 1426, 1436 n. 5 (10th Cir. 1985) (“To fall within the scope of 404(b), an act need not be criminal, so long as it tends to impugn a defendant's character.”); United States v. Beechum, 582 F.2d 898, 914 n. 17 (5th Cir. 1978) (Rule 404 “include[s] noncriminal activity that impugns the defendant's character,” because while “[t]he danger of a jury's reprisal for unpunished extrinsic activity is likely to be less when that activity is not of a criminal nature but merely ‘bad[,]’ [t]he trial judge should recognize ... that the conscience of a jury does not always coincide with the perimeters of criminality.”)
  • Sixth Circuit: United States v. Cooper, 577 F.2d 1079, 1087–88 (6th Cir. 1978) (holding that other acts evidence is not “limited only to evidence of other crimes, for its own language also speaks of ‘wrongs or acts.’ Conceivably within the broad language of the rule is any conduct of the defendant which may bear adversely on the jury's judgment of his character.”)
  • Seventh Circuit: United States v. Miller, 573 F.2d 388, 392 (7th Cir. 1978) (holding “the structure and language of ... Rule [404(b) ] indicate that it includes conduct that is neither criminal nor wrongful”)
  • Eleventh Circuit: United States v. Terebecki, 692 F.2d 1345, 1348 n. 2 (11th Cir. 1982) (Rule 404(b) “includes non-criminal activity that ‘impugns the defendant's character’ ”)
Scott, __ F.3d at __ n.5.

While the Second Circuit firmly placed itself with the main stream of thought on the issue of the nature of propensity evidence, also of interest is that nearly three months after the Federal Rules of Evidence were restyled in December, 2011, the Second Circuit noted the lack of effect of the restyling on the meaning of FRE 404(b). Specifically the circuit observed that:

The language of Rule 404(b) has since been amended to read “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.... This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” The Advisory Committee Notes for this change indicate that the change was “intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.” Fed.R.Evid. 404 advisory committee's note. Our analysis would thus be identical under either version of the Rule.
Scott, __ F.3d at __ n.4.

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