“Inextricably Intertwined Misconduct” – Narrative Glue or Prosecutive End-Run Around Rule 404(b)?

January 13, 2011Articles Criminaldefenselawyer.com

Federal Rule of Evidence 404(b), and its state analogs, place limits on the prosecution’s ability to admit damaging evidence about a defendant by requiring that the evidence of his/her other bad acts be moored to a permissible purpose illustrated in the Rule. Prosecutors typically attempt to slip the bounds of the Rule by offering such evidence, not under the categories of 404(b), but as “inextricably intertwined” with the charged offenses, what was once known as the “res gestae” to the crime. In a thoughtful survey of the law concerning this loosely defined and elastic concept, the Iowa Supreme Court recently criticized and limited this law enforcement tool.