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Thursday, April 07, 2011

Imbalance of Justice

Maybe it's just me because I am working on my first federal criminal appeal for a defendant, but is anyone else alarmed at the ease by which the government can get into evidence incriminating material relating to uncharged crimes and bad acts under F. R. Crim. Pro 404(b)? I mean, everything and the kitchen sink can come in to prove "intent" as long as it doesn't touch character? I'm not an expert like some of you here, but my research so far reveals that admission of 404(b) material as evidence is never reversed (if you have a case, let me know . . . ) and there is no question in my mind that the jury will have no trouble hearing that bell ringing in every case.

It seems that the Federal Rules present an uphill battle, barefoot, in the snow, for a defendant on appeal and that the constitutional guarantee of a fair trial may be undermined by the Rules.


Posted by DBorman on April 7, 2011 at 05:53 PM | Permalink


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Thank you very much for Beasley. My favorite line from that case: "Beasley says the vegetables took their medicine." I may try to work this in in my "please don't hit me" argument, but unfortunately I am stuck with pretty bad facts for my defendant.

Posted by: Debbie Borman | Apr 10, 2011 9:58:15 AM

United States v. Beasley, 809 F.2d 1273 (7th Cir. 1987), is a CA7 case that vacated some (though not all) of a defendant's convictions based on error in admitting prior bad acts evidence. It may also be helpful in getting around the problem Professor Kerr identifies, as it suggests that the court will be less deferential when a defendant can show that the district court failed to take the right factors into account, even though it is highly deferential when asked to second guess the district court's ultimate balancing call.

Posted by: a poster | Apr 8, 2011 3:09:43 PM

It's a tough issue for an appeal, in my experience, as it's at the discretion of the trial judge. So it largely depends on the trial judge, and whether s/he lets it in in the first place.

Posted by: Orin Kerr | Apr 7, 2011 8:14:07 PM

Thank you very much, both of you. I am in the Seventh but it's not looking good for my particular set of facts on the 404(b)issue. I am turning my focus to improper joinder in the indictment with no allegations of conspiracy or a common plan or scheme, and error in failing to sever from co-defendants both pre-trial and later. I feel like I have a very strong argument, but . . . appellate courts tend to rubber stamp both of these decisions based on trial court's discretion.

Posted by: Debbie Borman | Apr 7, 2011 7:16:19 PM

I'm blanking on the name of the case, but I thought the Seventh Circuit had a short, en banc decision in the mid-2000's where they put some restrictions on the use of 404(b) evidence, so you might try looking for that. But otherwise, I agree with your basic point.

Posted by: Calderon | Apr 7, 2011 7:00:12 PM

Try United States v. Bell, 516 F.3d 432 (6th Cir. 2008), United States v. Jenkins, 593 F.3d 480 (6th Cir. 2010), and United States v. Corsmeier, 617 F.3d 417 (6th Cir. 2010).

Posted by: a poster | Apr 7, 2011 6:39:34 PM

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