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