Rule 404(b)(2) discusses a nonexhaustive list of ways to go around the character-propensity box. The following are examples of going around the box. If something qualifies in the list (and does not create the inference that the particular occasion is in accordance with the character trait), it may still be subject to a limiting instruction.

Proof of Knowledge

If another action shows the defendant had knowledge of how to perform the action, then that may be admissible. Consider the following examples.

If a hacker hacks twice and pleads guilty to the second offense, that act may be used to prove the knowledge and ability to hack in the first offense (but cannot be used to show that he had a propensity for hacking and hacked on the first occasion). The fewer people who know how to hack increases the probative value of the information.

A person charged with drug trafficking may have evidence of a previous charge of drug trafficking used to show that the individual had knowledge of the drug trade. See United States v. Crowder, 87 F.3d 1405 (D.C. Cir. 1996). Again, test the probative value based on how many people know how to sell drugs.

If a train conductor has a reputation for being drunk and causing a crash, his previous condition may not be used to say he was drunk on that occasion. However, it may be used to show that the railroad should have responded differently (the railroad knew of his condition).

Proof of Motive

State v. Skinner, 218 N.J. 496 (2014). In this case, Skinner was taken into custody for a shooting related to drug money. When searching Skinner’s car, the police found rap lyrics—seemingly written by Skinner—discussing violent actions. This was admitted to show motive. The use of rap lyrics has been very controversial. California has banned the use outright and New York has banned it unless the lyrics are directly related to the facts of the case.

United States v. Peltier, 585 F.2d 314 (8th Cir. 1978). Peltier had an arrest warrant for attempted murder in Wisconsin. He knew about this warrant when a gunfight ensued between two FBI agents and Peltier. The question is whether the warrant for attempted murder in Wisconsin could be admitted as evidence. This is a really close case, with enough discussion the defendant is likely to say enough to ensure its admittance.

Proof of Identity

United States v. Peltier, 585 F.2d 314 (8th Cir. 1978). Later, Peltier was pulled over and found in a mobile home with a paper bag that contained the FBI agent’s gun with Peltier’s thumbprint. Can the evidence be used to prove Peltier is the individual who committed the shootings? The bag and gun may be included, but not any other the evidence found within the vehicle.

United States v. Jones, 28 F.3d 1574 (11th Cir. 1994). Officers entered an apartment and recovered drugs and lottery tickets. Unsure of whether Jones was the apartment occupant, the prosecution attempted to add evidence of Jones’s previous conviction of commercial gambling, showing it was likely for him to gamble on this particular occasion. This clearly goes through the propensity box and the evidence should be barred. Consider the same fact pattern, but picture that instead of lottery tickets, Jones was an avid boater and a boating brochure was found. Would this be admissible? Maybe, the prejudice against character is much lower.

Modus Operandi (M.O.)

If a defendant has committed a crime in the past and a strikingly similar crime is committed in the future, M.O. may be admissible only when the identity is an issue.

United States v. Trenkler

61 F.3d 45 (1st Cir. 1995).

Trenckler had built a remote controlled bomb for a client, the purpose was to intimidate the client’s competitor. Later, a second bomb went off, killing two bomb squad members. Trenckler was accused of building the second bomb for Slay Jr., the purpose was to target Slay Sr.

As part of this accusation, the majority pointed to the many similarities and mode of operation in obtaining bomb components to point to Trenckler. The similarities were sufficiently many, and the risk of unfair prejudice was not overwhelming. As such, the trial court did not error in admitting the second bombing, tied to the identity of Trenckler as the maker.

However, the dissent argues there are several differences and flaws with the search for a signature within the bomb. These differences make it impossible to determine that Trenckler had built both bombs. This was especially true because the first bomb utilized a harmless material (meant to simulate gunfire, like a firecracker), and the second bomb utilized TNT.

United States v. Stevens

935 F.2d 1380 (3d Cir. 1991).

Two Air Force officials were on base and waiting at a bus stop. While there, an individual approached them, robbed one and sexually assaulted the other. Later, the individual was identified by the two officials as Stevens. Around the same time, Mitchell was robbed by another person who had a similar description as Stevens. However, Stevens was not identified as the assailant in that case (being a part of the same line up).

Stevens sought to enter into evidence that he had been misidentified because Mitchell pointed to a different individual as the committer of the crime. This is an example of the reverse 404(b) rule, where a defendant admits evidence for the purpose of saying “I am not identified” as the perpetrator. If reverse 404(b) is applied, then the court simply needs to do a 401 and 403 analysis to test the probative value of the evidence. In this case, the evidence should not be excluded.

Narrative Integrity (Res Gestae)

United States v. Hite, 364 F.3d 874 (7th Cir. 2004).

Hite was charged with an illegal weapon. The prosecution called his ex-fiance to testify that Hite had showed her the gun and played Russian Roulette with her. On objection, the court said that she could testify about the gun and about Hite pulling the trigger, but references to the phrase Russian Roulette was to be denied. During trial, Stewart followed those instructions in providing her narrative testimony.

United States v. DeGeorge

380 F.3d 1203 (9th Cir. 2004).

DeGeorge had been involved in three boat sinking and collection of insurance money for each sinking. The present case arises because DeGeorge purchased a boat for 1.6 million, then inflated its value by making several fraudulent transfers to companies controlled by DeGeorge. After the value had increased to 3.6 million, insurance was applied for. Part of the reason for the several transfers was to disguise DeGeorge as the owner of the boat, fearing lack of insurance money for his previous actions. After insurance was granted, DeGeorge and others hopped on the boat and attempted to sink it. Despite their efforts, they were unsuccessful, being cause in the act. After making up a story, they attempted to collect insurance money. DeGeorge was then charged with perjury and other crimes.

At trial, the court admitted testimony about the past sinking because they were important to the narrative of the story. The jury would not have known why there was a need to disguise himself without this narrative. Additionally, the court scrubbed the evidence by limiting it and prohibiting any talk about collecting insurance money for the sinking. This was sound and the ruling was affirmed.

Absence of Accident

People v. Burnett, 110 Cal. App. 4th 868 (2003). How much does a claim an action was an accident open the door allowing other testimony to show that the actions were not accidental based on past actions? In this case, the defendant argued that he accidentally dropped a dog who bit him (he had a previous feud with the dog owner) where the dog run into the road and was subject to a car accident.

Doctrine of Chances

Rex v. Smith

11 Cr. App. R. 229 (1915).

Smith had reported his wife drowned in the tub and claimed her inheritance. Previously, Smith had reported two other wives who had died in the same manner, each leaving him with their inheritance. What is to be inferred by these circumstances? Is Smith of a bad moral character because this misfortune happened to him three times? Is he guilty?

This fact pattern gives rise to the doctrine of chances. That is, it is extremely unlikely that multiple occurrences of similar circumstances is innocent in nature. The challenge with this doctrine, however, is that it may pass through the propensity box (there is debate about that). Regardless, the doctrine of chances tends to be accepted for most cases.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.