Today we deal with the question of the admissibility of uncharged misconduct evidence, which Edward Imwinkelried, professor at the University of California, Davis School of Law, opined is “the single most important issue in contemporary criminal evidence law.”1 He writes that Rule 404(b) has emerged as one of the most cited rules in the Federal Rules of Evidence (FRE).2 Clearly, the question of the admissibility of such evidence holds the potential for delivering the greatest damage to a defendant’s cause. FRE 404(b) governs the admissibility of prior other crimes, wrongs or acts, separate from the crimes charged in the indictment.3 The rule prohibits the admission of such evidence if it tends to prove propensity, meaning if the defendant did it before, he probably did it here.4
The U.S. Court of Appeals for the Second Circuit follows the inclusionary rule, which admits all other crimes, wrongs or acts evidence that do not serve the sole purpose of showing the defendant’s bad character, and that is neither overly prejudicial under FRE 403, nor irrelevant under FRE 402. The origins of the doctrine can be traced back to the common law.5
