The ‘Inextricably Intertwined’ Doctrine: No Longer a Reliable Prosecutorial Standby?

April 20, 2011Articles Criminal Law Reporter

Prosecutors enjoy many advantages at trial that are suddenly lost when the same attorneys later in their careers take up residence on the defendant's side of the courtroom. Some of the advantages--such as sitting closest to the jury box and enjoying the opportunity to deliver two summations to that jury--are tangible benefits secured by procedural rule or embedded practice; others--such as reflexively enjoying the judge's confidence--are less tangible, if no less important.

Prosecutors also are given a wide berth by most judges' application of the Federal Rules of Evidence: They can ask leading questions broadly under the guise of "develop[ing] the witness' testimony" under Fed. R. Evid. 611; they can wander far afield from the core issues in eliciting incriminating details under the mantra of "witness background"; they can admit business records whose four-part foundation under Fed. R. Evid. 806 is laid solely by a searching agent when the agent's only knowledge is rank hearsay gained in the search; and they can offer Fed. R. Evid. 1006 summaries when the underlying records are from "voluminous."

Perhaps few evidentiary advantages held by the government are as significant as the admission of evidence of other crimes, wrongs, or acts. We do not mean Fed. R. Evid. 404(b), which has its role in the analysis, but the unwritten and undefined, common law standard that has existed in parallel Rule 404(b): evidence of other activities that are "inextricably intertwined" with proof of the elements of the charged offenses. For many years predating the adoption of the Federal Rules of labeling evidence 'intrinsic' are to relieve the prosecution of Rule 404(b)'s notice requirement and the court of its obligation to give an appropriate limiting instruction upon defense counsel's request." United States v. Bowie, 232 F.3d 923, 927 (D.C. Cir. 2000).

View full article