Civil litigators often underutilize Federal Rule of Evidence 404(b) at trial. Ordinarily construed as a criminal evidentiary rule, Rule 404(b) excludes evidence of a person’s character or actions as proof that the person acted in conformity with that character attribute. The rule provides, in relevant part, as follows:
Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts
. . . .
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. 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 the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.<./p>
The rule bars the use of evidence of prior crimes, wrongs, and bad acts “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” However, there are exceptions to the rule, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” If a client alleges that it has been bamboozled by a con to purchase a business or product that does not match the representations made, often the seller may have committed prior “bad acts” that arguably could help establish the presence of intent, knowledge, and absence of mistake.
Though often overlooked in civil cases, this and other exceptions may enable savvy counsel to employ evidence that might not ordinarily be admitted. And even if such evidence ultimately is ruled inadmissible, the pursuit of it may lead to other, admissible, evidence and may also influence decisions regarding settlement and trial strategy.