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Prior Bad Acts: Notes on Rules 404(b) and 608(b) from a Recent Case

Consider this fact pattern, which arose in a recent trial: You are representing the plaintiffs in a Section 1983 police brutality case in which one of the defendants, you believe, is guilty of prior bad acts remarkably similar to the ones you’ve alleged in your case. What’s more, the prior bad acts involve a police conspiracy to cover up use of excessive force against civilians. They therefore involve dishonesty that reflects on the defendant’s credibility. Your informal polling of friends and family shows that the prior acts completely change their view of the case, and in your favor. It also shows that people are of the firm opinion that the prior acts are an integral part of your story of the case.

This fact pattern presents a number of issues: How do you go about getting the prior acts into evidence? What objections can you expect? What are some of the tactical mistakes to avoid? I’ll discuss these issues and the state of federal law, particularly in the Fifth Circuit where I practice, in this post.

(At the bottom of this post I’ve included the actual briefs addressing these issues that were filed in the case I recently worked on, Wells v. City of New Orleans, et al., which was an excessive force case against a number of police officers who, we alleged, had strangled our client to death after he ran and fought with them. Gary Bizal was the lead counsel; my hat off to Gary for a great job at the trial. The prior act at issue was the Danziger Bridge incident from September 2005, in which the US government has alleged that a number of New Orleans police officers, including a defendant from our case, shot unarmed civilians on the bridge after Hurricane Katrina and then participated in a conspiracy to cover-up of the incident.)

1. How to get the prior acts into evidence?

The Federal Rules of Evidence provide at least two ways: First is Rule 404(b). The second is Rule 608(b).


Rule 404(b) permits the introduction of prior acts so long as they are not introduced to establish “the character of a person to show action in conformity therewith.” The rule reads:

(b) Other crimes, wrongs, or acts

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Although many lawyers think of Rule 404(b) as a rule of exclusion–it keeps evidence out rather than letting it in–it is in fact an inclusionary rule. There are, in other words, many reasons why evidence can be admitted under this rule (eg., as proof of motive, plan, intent, opportunity, etc.), and only one reason why the evidence must be kept out, ie. if it is offered to prove character and to show action in conformity with that character on a particular occasion. United States v. Ackal, 706 F.2d 523, 531 (5th Cir. 1983) (noting inclusionary nature of Rule 404(b)).

Thus, the lawyer’s job when arguing that the prior acts evidence is admissible under Rule 404(b) is to craft a story in which the evidence shows some permissible fact under Rule 404(b). In my recent case, for example, we argued that the prior acts evidence would show a motive to lie about what happened in our case, as well as intent to cause harm. There is good case law from other civil rights cases to support these arguments. See United States v. Talley, 164 F.3d 989 (6th Cir. 1999) (government permitted to introduce evidence of other crimes by defendant sheriff’s deputy to show motive to commit civil rights violations at issue); United States v. Brown, 250 F.3d 580, 585 (7th Cir. 2001) (in prosecution for civil rights violations, government permitted to introduce evidence of prior occasion where defendant officer beat motorist for “disrespecting him” to show intent to violate civil rights on occasion at issue in prosecution).


Under the above fact pattern, Rule 608(b) provides the other avenue for getting the prior acts into evidence. Rule 608(b) permits evidence of other acts to be introduced if they reflect on witness’s credibility:

(b) Specific instances of conduct.

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Note the limitations contained in Rule 608(b): It applies only to instances of conduct reflecting on honesty, and no extrinsic evidence can be used to prove up the prior acts. Thus, if a witness on cross-examination denies the act occurred, the cross-examiner is stuck with the answer. He or she could not, for example, use a document to prove that the act in fact occurred.

2. Likely Objections

It would be a rare case where the opposing party does not object to the introduction of prior acts evidence under Rules 404(b) or 608(b). What are some of the objections to expect?

The obvious objection to Rule 404(b) evidence is that the other party is in fact using it to prove character rather than for a permissible purpose. As many commentators have noted, the line between character and other uses is indeed blurry. For this reason, it is important that the proponent of the prior-act evidence avoids describing the evidence in any way that would suggest it is in fact being used to show character.

Under Rule 608(b), you are likely to face an objection that the evidence is not probative of the witness’s honesty or dishonesty. In United States v. Davis, for example, Judge Vance of the Eastern District of Louisiana considered a motion to quash a subpoena for Public Integrity Bureau reports regarding a particular officer. See No. 01-282, 2003 US Dist. LEXIS 6548 (E.D. LA 2003). The proponent of the subpoena argued that the reports would have been admissible under Rule 608(b) because they reflected on the witness’s honesty. Judge Vance, however, granted the subpoena primarily because the reports showed that the complaints against the officer had been found to be “unsubstantiated,” ie. untrue. Therefore, the reports did not in fact negatively reflect on the officer’s credibility. Furthermore, the reports were precisely the type of extrinsic evidence that Rule 608(b) disallowed. They thus would not have been admissible in any event.

Another 608(b) objection we faced in our trial was that the law of the Fifth Circuit permitted only criminal convictions to be used under this rule. See, e.g., United States v. Cox, 536 F.2d 65 at n. 11 (5th Cir. 1976). This argument is derived from old case law that pre-dates the enactment of the current version of the Federal Rules of Evidence. See id. These cases, which are collected in United v. Cole, 617 F.2d 151, 153 n.2 (5th Cir. 1983), have been deemed “unhelpful” in the Rule 608(b) analysis. See id. It’s not hard to see why: If Rule 608(b) were read to apply only to criminal convictions, it would be effectively meaningless because criminal convictions are specifically treated under Rule 609. In fact, if anything the plain language of 608(b) makes clear that it is intended to apply to specific instances of conduct not resulting in a conviction. Consequently, this argument shouldn’t carry much water.

3. The Final Hurdle: Rule 403

The final hurdle for getting prior acts into evidence is the balancing test of Rule 403. This test applies to both 404(b) and 608(b) evidence. Under the familiar standard, relevant evidence should be excluded if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Rule 403 is a real danger in this context. (It is in fact the reason why we were not permitted to introduce Danziger evidence in our recent trial.) For this reason, briefing prior act issues can be a balancing act– On the one hand, you have to make the case for the evidence’s relevance and probative value, but on the other if you make the evidence seem too good the judge may be more likely to disallow it under Rule 403.

I think most Rule 403 decisions are probably based on “gut instinct” rather than technical analysis. Of course, if you can find a supportive case presenting a similar fact situation as yours it’s great. But because every case is different, and because of the wide discretion invested in district courts on the Rule 403 issue, case law will likely only get you so far in this context. To the extent you’re able, I think the best briefing strategy on Rule 403 issues is to use the concrete facts of your situation to show why you’re right on a basic, “justice-mom-and-apple-pie” level. In other words, talk to the judge’s gut, not their head, and show them why you’re right, don’t just tell them so.

That being said, Old Chief v. United States, 519 U.S. 172 (1997), is probably the leading US Supreme Court case on Rule 403.

Also, for civil rights cases in the Fifth Circuit, Hinojosa v. Butler, 547 F.3d 285 (5th Cir. 2008), is an excellent case. In Hinojosa, a plaintiff sued an officer for alleged excessive force during a traffic stop. The only two witnesses to the event were the plaintiff and the defendant officer, and not surprisingly their stories differed dramatically. Between the time of the arrest and the trial, the officer had quit the force after an investigation revealed a series of acts of misconduct, including some that involved dishonesty. The district court precluded the plaintiff from questioning the officer regarding these acts because the officer informed the court that he intended to take the Fifth Amendment.

Reversing, the Fifth Circuit first noted that civil defendants do not enjoy the same Fifth Amendment rights as criminal defendants, and thus a district court has discretion whether to permit the jury to hear the invocation of rights. The court then went on to explain that because credibility was the core issue in the case, it was error to prevent the jury from hearing the plaintiff’s questions regarding the prior bad acts. It was also error to prevent the jury from hearing the defendant’s invocation of his Fifth Amendment rights because the invocation was highly relevant to the core credibility issue in the case.

For the briefs on these issues from the recent case, please see below.

Mt to Reconsider- 404b and 608

Memo in Further Support of Reconsideration


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