Seventh Circuit Cleans Up the “Other Bad Acts” Mess (a Little)

Posted on Categories Criminal Law & Process, Evidence, Federal Criminal Law & Process, Seventh Circuit

I’ve blogged on a number of occasions about the messy state of the law relating to the admissibility of “other bad acts” evidence (e.g., here and here).  Federal Rule of Evidence 404(b) indicates that other bad acts may not be used against a criminal defendant to show bad character or a propensity to commit crime.  However, the Rule includes a number of exceptions, and courts have not only tended to interpret those exceptions expansively, but have also recognized an additional exception for evidence that is “inextricably intertwined” with proof of a charged offense.

Given the expansively interpreted exceptions set forth in Rule 404(b) itself, the inextricable intertwinement exception seemed to me an unnecessary and confusing addition to the law.  The Seventh Circuit has now indicated its agreement with that view.  

In United States v. Gorman (No. 09-3010) (Kanne, J.), the court held:

[T]he inextricable intertwinement doctrine has . . . become overused, vague, and quite unhelpful.  To ensure that there are no more doubts about the court’s position on this issue — the inextricable intertwinement doctrine has outlived its usefulness.  Henceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility. (15-16)

The Gorman case itself illustrates why the inextricable intertwinement doctrine is unnecessary and confusing.  The government charged Gorman with perjury based on a statement he made to a grand jury in which he denied that he “had” a particular car in his garage.  At trial, the government introduced evidence that Gorman stole the car from the garage.  Gorman objected that this was evidence of another bad act (a theft) that could not properly be used against him in a trial on perjury charges.  The trial court admitted the evidence under the inextricable intertwinement rule, but, as the Seventh Circuit pointed out, the theft was really simply direct evidence that Gorman’s grand jury testimony was false — it tended to show that Gorman “had” the car that he denied having.  There was no need to figure out whether the theft evidence somehow “completed the story” (which would go to establish inextricable intertwinement).

So long, inextricable intertwinement — the alliteration makes it fun to say, but otherwise I don’t think we will miss this particular doctrine.

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