First Page
115
Last Page
145
Document Type
Article
Abstract
Crimes make for compelling stories. So juries make for an eager audience. Jurors want to—indeed, expect to—learn what the defendant did, how they did it, and why they deserve punishment. Capable prosecutors know how to deliver. Trial narratives empower jurors to link discrete pieces of evidence and infer facts from circumstantial proof. Only then can they render a verdict consistent with their sense of justice. Federal courts thus afford wide leeway for prosecutors to present their case as they please, with the evidence at their disposal. The Federal Rules of Evidence delineates the scope of that discretion. Under Rule 404(b), prosecutors may not introduce proof of the defendant’s “other crimes” solely to prove that old habits are hard to break. But courts have struggled to distinguish between “other crimes” and crimes that are part and parcel of the charged offense. Most circuits draw the line by relying on the “inextricably inter-twined” doctrine: Rule 404(b) does not cover evidence of uncharged misconduct “inextricably intertwined” with—or “completes the story” of—the charged offense. This Article argues that this judicially invented doctrine manifestly conflicts with Rule 404(b)’s text, structure, and history. It invites jurors to rely on seductive but unfair assumptions about the defendant’s personal character when deciding the paramount question of guilt or innocence.
Recommended Citation
Brian Chen
Prosecutorial Storytelling Through Intrinsic Evidence,
2023 Pepp. L. Rev.
115
(2023)
Available at:
https://digitalcommons.pepperdine.edu/plr/vol2023/iss1/7
