Two additional things worth thinking about FRE 404(b)(2) and other crimes, wrongs, or acts.
1) The permissible use a party will argue for other acts evidence may depend on which act is charged and which act is used as evidence. Recall the examples from class: As between a bank robbery and funding terrorism, whether it is plan, preparation, or both depends on whether government charges the robbery or the funding. As between bank fraud and murder of a witness, whether it is motive, consciousness of guilt, or both depends on whether government charges bank fraud or murder.
But that opens a way for a proponent of evidence (especially a prosecutor) to get around FRE 404(b) problems--charge all acts.That way, all acts are charged and none are evidential. The prosecutor can charge both bank fraud and killing the witness, making both charged rather than evidential acts
2) Here is a bit of "reverse 404(b)(2) identity" from the 1985 film The Jagged Edge. The woman lawyer is defense counsel for a man charged with murdering his wife in a specific and sexually ritualistic way. The defense calls a witness who was the victim of an identical specific and sexually ritualistic crime (the description in the testimony is very graphic). The defense is obviously trying identity--whoever committed the prior assault committed the charged murder and that person is someone other than the defendant. From the clip, what is the argument for and against admitting this testimony, given the two steps in the 404(b)(2) analysis? (Ignore the part where the defense asks about conversations with the DA).
