Law Commons^™

Windfall Analysis: A New Look At Uncharged Conduct Evidence, David J. Achtenberg

Faculty Works

In criminal cases, the prosecution frequently offers evidence of uncharged conduct (usually prior criminal activity), claiming that it will tend to prove the mens rea element of the charged offense. When such an offer is made, Rule 404(b) of the Federal Rules of Evidence (FRE) creates a dilemma for the trial court. On the one hand, the rule forbids the introduction of uncharged conduct evidence (UCE) for one purpose: proof of a person's character in order to show that the person acted in conformity with that character trait on a particular occasion. On the other hand, it permits the introduction …