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

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.  

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Is American law too complex?  PrawfsBlawg featured an interesting exchange on this question last week.  Eric Johnson initiated the exchange with this post, in which he observed:

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it’s not there. It’s so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

. . .

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

In addition to a lively string of comments (including a couple by our own Rick Esenberg), Eric’s comments also prompted a thoughtful responsive post by Paul Horwitz.  

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Best of the Blogs

The first item that caught my eye this week was a little blog our student Priya Barnes is writing as she visits Germany, attending the Summer Session in Giessen, Germany, that Professor Fallone blogged about on Monday.  So far, she’s only offered one entry, about her travels, but I intend to watch for more….

Mark Tushnet (who gave a terrific presentation at Marquette last week, co-sponsored by the student American Constitution Society organization and the local lawyer’s chapter of ACS) raises some interesting questions about Republican-sponsored legislation that would require congressional review of proposed “major regulations.” The idea is that agency rules would be transformed into agency proposals, to be okayed by Congress.  For “non-major” proposals, Congressional silence would equal assent, while majority votes of both chambers would be required for adoption of new “major regulations.”  

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