The Champion

August 2003 , Page 66 

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The past as a predictor: Is prior drug use probative of future distribution?

By Barry Tarlow

Read more RICO Report columns.

Courts have wrestled with the two-edged sword created by Federal Rule of Evidence 404 since the rule’s adoption. On the one hand, the rule forbids admitting “[e]vidence of a person’s character or a trait of character . . . for the purpose of proving action in conformity therewith.” Fed. R. Evid 404(a). The very next sentence, however, permits the admission of evidence of other crimes, wrongs, or acts “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  

In a very real sense, though, the rule permits with its second sentence the type of propensity evidence forbidden by its first sentence. Prior bad acts may not be admitted to show a propensity to commit those acts, but may be offered to show the defendant has a propensity to possess a certain type of intent. The exception certainly threatens to swallow the rule and sloppy reasoning has often allowed the admission of other acts only ten

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