Black-letter propositions
- 01
Permitted theories include motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake, but the proponent must articulate the nonpropensity chain.
- 02
Evidence must support a finding that the act occurred and the person committed it.
- 03
Similarity and timing depend on the purpose, especially signature identity.
- 04
Criminal cases require notice, and Rule 403 remains essential.
- 05
Habit is a specific, regular, semiautomatic response to a repeated situation and differs from broad disposition.
Use this attack sequence under time
Frame the issue
Identify the disputed issue and inference.
Resolve the next checkpoint
Assess proof, similarity, timing, and need.
Resolve the next checkpoint
Apply notice and limiting instruction.
Resolve the next checkpoint
Compare habit's specificity and regularity.
Finish the conclusion
Finish with Rule 403.
Common wrong turns
- A list of permitted purposes is not analysis.
- Intent cannot be a pretext when undisputed.
- A few occasional acts rarely establish habit.
Worked example
A defendant denies knowing packages contained drugs; prior packages used the same unusual concealment and the defendant was warned.
The prior acts may show knowledge through a nonpropensity chain if sufficiently similar and necessary, subject to notice, limiting instruction, and Rule 403.
Practice this topic
Rule 404(b): other crimes, wrongs or acts
Rule 404(b)(1) says evidence of any other crime, wrong or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with it. Rule 404(b)(2) says the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident. The list is illustrative, so name the purpose and the chain of reasoning that does not run through propensity.
Rule 404(b)(3) adds notice in a criminal case. The prosecutor must provide reasonable notice so the defendant has a fair opportunity to meet the evidence, articulate the permitted purpose and the supporting reasoning, and do so in writing before trial, or in any form during trial if the court excuses the lack of pretrial notice for good cause.
Habit and similar-crimes rules
Rule 406 says evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with it. The court may admit it regardless of whether it is corroborated or whether there was an eyewitness. Habit is a regular response to a repeated situation, so identify both.
Rule 413 allows a court, in a criminal case in which a defendant is accused of a sexual assault, to admit evidence that the defendant committed any other sexual assault, and it may be considered on any matter to which it is relevant. The prosecutor must disclose it at least 15 days before trial or later for good cause. Rule 413(d) defines sexual assault to include conduct prohibited by 18 U.S.C. chapter 109A and contact without consent between any part of the defendant's body or an object and another person's genitals or anus.
Frequently asked questions
What is the controlling rule for crimes, wrongs, acts, and habit?+
Other acts require a genuine nonpropensity inference and contextual safeguards, while habit rests on a highly regular specific response.
How should I analyze crimes, wrongs, acts, and habit on the bar exam?+
Identify the disputed issue and inference. Assess proof, similarity, timing, and need. Apply notice and limiting instruction. Compare habit's specificity and regularity. Finish with Rule 403.
What does Rule 404(b) prohibit?+
Using evidence of another crime, wrong or act to prove a person's character in order to show that on a particular occasion the person acted in accordance with that character.
For what purposes may other-acts evidence be admitted?+
Another purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident, according to Rule 404(b)(2).
What notice must a prosecutor give under Rule 404(b)?+
Reasonable written notice before trial that states the permitted purpose and the supporting reasoning, or notice during trial if the court excuses lack of pretrial notice for good cause.
What does Rule 406 allow?+
Evidence of a person's habit or an organization's routine practice to prove that on a particular occasion the person or organization acted in accordance with it, without corroboration or an eyewitness.
What does Rule 413 permit in sexual-assault prosecutions?+
Evidence that the defendant committed any other sexual assault, which may be considered on any matter to which it is relevant, according to Rule 413(a).
What notice must a prosecutor give under Rule 413?+
Disclosure of the evidence, including witnesses' statements or a summary of expected testimony, at least 15 days before trial or later if the court allows for good cause.