SHADOWS OF MY PAST: BAD CHARACTER EVIDENCE (O.C.G.A. 24-4-404 (b))

Character evidence is any testimony or document that is admitted and used in court to show that a person acted in a particular way based on the character or disposition of that person. In Georgia such evidence is found in O.C.G.A. 24-4-404(b), and is often referred to as 404(b) evidence.

The statute provides that 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.” This means that before one’s past conduct or character can be admitted into evidence, the court must make specific findings about such evidence. The threshold inquiry a court must make before admitting evidence under 404(b) is whether that evidence is probative of a material issue other than character. Huddleston v. United States, 485 U.S. 681, 686 (1988). This principle is based on the presumption of innocence and the recognition that “[i]t is fundamental to American jurisprudence that a defendant must be tried for what he did, not for who he is.” United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980).

The exclusion of bad acts evidence is founded not on a belief that the evidence is irrelevant, but rather on a fear that juries will tend to give it excessive weight, and on a fundamental sense that no one should be convicted of a crime based on his or her prior misdeeds. United States v. Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985).

In the Eleventh Circuit, to be admissible under Rule 404(b) evidence must withstand a three-part test: (1) The evidence must be relevant to an issue other than the defendant’s character; (2) the probative value of the evidence must not be substantially outweighed by its undue prejudice; and (3) the government must offer sufficient proof so that the jury could find that the defendant committed the act sought to be admitted. United States v. Muoio, 2014 U.S. App. LEXIS 21422 (11th Cir. 2014).


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