The Second Circuit’s “Inclusionary Rule” for Other Crimes Evidence under Rule 404(b)

From U.S. v. Aleynikov, 2011 U.S. Dist. LEXIS 33345 (S.D.N.Y. Mar. 16, 2011):

Although evidence of other crimes "is not admissible to prove the character of a person in order to show action in conformity therewith," it can be used "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). "The Second Circuit's 'inclusionary rule' allows the admission of such evidence 'for any purpose other than to show a defendant's criminal propensity, as long as the evidence is relevant and satisfies the probative-prejudice balancing test of Rule 403 of the Federal Rules of Evidence.'" United States v. Greer, 2011 WL 338050, at *5 (2d Cir. Feb. 4, 2011) (citation omitted). In determining admissibility under Rule 404(b), Fed. R. Evid., the court should consider "whether (1) it was offered for a proper purpose; (2) it was relevant to a material issue in dispute; (3) its probative value . . . substantially outweighed . . . its prejudicial effect; and (4) the trial court gave an appropriate limiting instruction to the jury if so requested by the defendant." United States v. Guang, 511 F.3d 110, 121 (2d Cir. 2007) (citation omitted).

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