To 404(b) or Not to 404(b)

Published for NC Criminal Law on August 09, 2017.

My ten-year-old daughter asked me a few weeks ago what O.J. Simpson had done. Like the rest of America, she heard news of his parole hearing. What she couldn’t figure out is why people were so interested in when he would be released from jail.  I told her about the hotel room and the sports memorabilia. And then I told her about the murders of Nicole Brown Simpson and Ron Goldman. (Don’t judge me: She has older brothers and she has watched so many episodes of Criminal Minds that the damage is already done.) I told her that a great many people thought O.J. had gotten away with murder; that’s why some thought he should stay in jail. With O.J., as with nearly everyone tried in the court of public opinion, allegations of other bad behavior shape the public’s perception of the person’s current predicament. Fortunately, our actual courts operate in a more principled manner. When a prosecutor wants to offer evidence of misconduct by a criminal defendant that is not directly connected the crime with which the defendant is charged, the prosecutor must show that he is offering that evidence for some purpose other than to prove the person’s bad character. N.C. R. Evid. 404(b). The possible other purposes may include proving the person’s motive, opportunity to commit the crime, intentionality, preparation, planning, knowledge, identity, or absence of mistake, entrapment or accident – or any other relevant purpose. So long as the evidence of other crimes, wrongs or acts is [...]