Federal Rules of Evidence Rule 404(b) states:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. . .

In United States v. Raymond the First Circuit Court of Appeals approved the use of “Bad Acts” evidence pursuant to the rule. James Raymond, a Maine elementary school music teacher was convicted of two counts of transporting a minor with intent to engage in criminal sexual activity. On two occasions he drove two sisters to Canobie Lake Park, a New Hampshire amusement park. The evidence showed that on each occasion he touched buttocks of the 11 year old sister.

Additional evidence at trial, offered pursuant to Rule 404(b) showed that during a school-sponsored field trip to Canobie Lake Raymond rubbed his hand on the victim’s legs and another young girl who stated that Raymond “touched her buttocks under her skirt at school.”Raymond objected to the admission of the evidence during a pretrial motion 1 and on appeal. The Court found the evidence admissible since it showed Raymond’s intent to engage in unlawful sexual activity.

To be admissible evidence must not only meet the 404(b) test but it must also meet the requirement of Rule 403 which requires “that the probative value of the evidence must substantially outweigh any danger of unfair prejudice.” All evidence, if it is material and relevant is prejudicial. It is clear to me that the evidence of prior instances where Raymond conduct was identical to the charged conduct is extremely prejudicial and it outweighs the probative value of the evidence. But the Court held that the evidence must outweigh the danger of unfair prejudice and the First Circuit ruled that there was no evidence that it was unfair.


  1. He failed to object at trial and therefore waived the right to object on appeal, barring plain error, but the First Circuit said that even if he had objected the testimony was admissible

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