In this second post on Rule 404(b) evidence [editor's note: the first post in this occasional series is here], I’ll address a point that sometimes gets overlooked in the admissibility analysis: In order for Rule 404(b) evidence to be relevant, there must be sufficient evidence that the defendant committed the other act in question. State v. Haskins, 104 N.C. App. 675, 679 (1991). Only once that preliminary threshold is satisfied, does the standard Rule 404(b) analysis of similarity and temporal proximity apply. Id. at 679-80 (“the trial court is required to make an initial determination pursuant to Rule 104(b) of whether there is sufficient evidence that the defendant in fact committed the extrinsic act”). At the outset I note that Rule 404(b) isn’t limited to evidence offered against the defendant. N.C.R.Evid. 404(b). However, since that’s how the issue most commonly arises, I’ll use the term “defendant” in this post when describing Rule 404(b) scenarios. When the defendant has been convicted of the prior conduct, the requirement that the evidence sufficiently establishes that the defendant committed the act presents no special issues. Similarly, this requirement is easily satisfied when a witness credibly testifies that the defendant committed the other act. Haskins, 104 N.C. App. at 681 (the 404(b) evidence was of an attempted robbery; the victim positively identified the defendant as the perpetrator and testified at trial to that effect). However, if the defendant has been tried and acquitted of the conduct, evidence of the other act is inadmissible. State v. Ward, [...]
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