Reconciling Inextricably Intertwined/Intricately Related Other Crimes, Wrongs, or Culpable Acts Evidence with Fed.R.Evid. 404(B): Don't Throw the Baby Out With the Bath Water

The concept of “inextricably intertwined/intricately related” has been given such universal recognition in the law of evidence for good reason. Other crimes, wrongs, or culpable acts sufficiently connected to the criminal event forming the basis of the prosecution should be admissible in evidence without the requirement of notice, enhanced burden of proof, limiting instructions, along with a real life realistic application of Rule 403. The prosecution should be able to present a cohesive, complete and comprehensible story of the events including crimes, wrongs, or acts other than those charged where closely linked in point of time and space to the criminal event free from any and all of the foregoing requirements. Retention of the concept of “inextricably intertwined/intricately related” maintains the proper balance with respect to disclosure between prosecution and defense.The problem with “inextricably intertwined/intricately related” correctly perceived and discussed recently by both the Seventh and Third Circuits is its unacceptable breadth as applied in practice. The approach that should be taken is not the abandonment of the concept of “inextricably intertwined/intricately related”, but its reformation making “inextricably intertwined/intricately related” solely applicable in the areas in which it properly belongs. The Third Circuit saw this need in Green preferring the term “intrinsic” defined as either “directly proves” the charged offense or “uncharged acts performed contemporaneously with the charged crime if they facilitate the commission of the charged crime.” It is suggested that neither “contemporaneous” nor “facilitate” is broad enough to capture the utility that should be captured by a reformulated “inextricably intertwined/intricately related”. “Contemporaneous” is too rigid a time frame. Moreover, many other crimes, wrongs or culpable acts necessary to complete the story do not “facilitate” the charged crime but are rather ancillary.The definition of “inextricably intertwined” should focus partially upon scope, not solely upon purpose. Prior focus solely on the purpose of “inextricably intertwined” lead to its unwarranted expansive breadth and lack of discriminating application rightly criticized in both the Seventh and Third Court opinions. The scope of “inextricably intertwined” being suggested is “closely linked in point of time and space to the criminal event”. The purpose of “inextricably intertwined” evidence is to complete the story, fill a chronological gap or conceptual void, or is so blended or connected that it incidentally involves or explains the circumstances surrounding the charged offense. “Inextricably intertwined” evidence along with direct evidence of the charged offense is intrinsic evidence not subject to Fed.R.Evid. 404(b) notice, limiting instruction, burden of proof requirements, and real application of Fed.R.Evid. 403. On the other hand, “background/context” evidence, i.e., evidence offered to show relationship, chronology, history, or mutual trust, is Fed.R.Evid. 404(b) evidence subject to each and every one of the foregoing requirements.