How’s this for unfair and unjust?  You get charged with a crime, defend the case and prevail at a jury trial.  Acquitted.  Not Guilty.  Several years later, you get charged with a different crime and the government files a notice with the trial court asking for permission to use the acts that formed the basis for the charges (in your past) that you were previously acquitted of to prove that you committed this new crime.  Seems impossible, right?  Surely a judge or a court of appeals would prevent this sort of injustice … I mean, after all, you were acquitted, right?  Think again.  The Fourth Circuit Court of Appeals found nothing wrong with the government’s use of acquitted conduct to help prove an accused guilty of a new crime:

Admitting Acquitted Conduct

Under our rules of evidence, one rule, FRE 404(b), allows the government to use past acts to help prove its case so long as its not done to prove that the person accused is guilty of the new crime because they committed the past act.  This is one of the legal fictions that defies logic.  Judges tell juries that they may only use the evidence for some things but must not consider the evidence for others.  Like, you may consider the photographs showing the accused with the gun in his hand from five (5) years ago for the purpose of proving that he knew what a gun looked like but you must not use the picture to show you that he likes to shoot guns at people.  It is absurd.  Yet, it happens in courts everyday.  Cases based on thin or no evidence are hoisted up and kept alive by the use of evidence from other situations, times, events and incidents.  In the case of acquitted conduct, it is even more absurd.

In the case cited above, not only did the Fourth Circuit Court of Appeals approve the use of the conduct to prove the accused’s guilt in a new case but it prohibited the lawyer and accused from introducing the fact that the accused was acquitted.  404(b) evidence when used by the prosecutor is unfair.  Denying the accused the chance to tell the jury the most important part of it, i.e., that he was acquitted of it, is unjust.

Neil Rockind is the Southfield Criminal Defense Attorney who was named the Best of Detroit by Hour Magazine, amongst the Top 100 Attorneys in Michigan by Super Lawyers Magazine and is a member of the Top 100 according to the National Trial Lawyers Association.  He and Colin Daniels, named a Rising Star by Super Lawyers Magazine, practice criminal defense litigation in Southfield, Michigan.