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Admissibility of Prior Acquitted Crimes Under Rule 404(b): Why the Majority Should Adopt the Minority Rule

NCJ Number
Florida State University Law Review Volume: 16 Issue: 4 Dated: (Spring 1989) Pages: 1033-1067
M M Delao
Date Published
35 pages
This comment examines the various approaches taken by the courts that have addressed the admissibility of prior acquittals as evidence.
Although evidence offered in prior convictions may be admissible if offered for a proper purpose under Rule 404(b) of the Federal Rules of Evidence, it remains unsettled whether prior acquittals, even when relevant, should be admissible. Courts addressing the admissibility of prior acquittals have taken three different approaches. The majority view treats prior acquittals the same as prior convictions, performing a Rule 403 balancing test and determining whether the evidence is offered for a proper purpose under Rule 404(b) before admitting the evidence. The minority view is that a prior acquitted crime is inadmissible if the issue the government seeks to prove was litigated in the prior trial and decided for the defendant, even if the evidence otherwise meets the requirements of Rule 403 and Rule 404(b). The third approach, a modified version of the minority view, was recently created by the U.S. Court of Appeals for the Sixth Circuit. Under this approach, the use of prior acquitted crimes is prohibited only where the issue the government seeks to prove through the prior acquittal was expressly considered and rejected by the prior jury. This comment concludes that evidence regarding settled factual issues from an acquittal should be inadmissible in almost every circumstance. 243 footnotes


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