The New Restrictive
HON. R.L. GOTTSFIELD & HON. CRANE McCLENNEN are Arizona Superior Court Judges in Maricopa County.
The article title is taken from an Arizona Supreme Court seminar in 1998 at which the authors participated.
In 1996 and 1997, the Arizona Supreme Court made
major changes in the area of other act evidence.
1 One of those changes was with evidence deemed
to be to be “intrinsic,” or part of the crime charged, as distinct from what was truly another act or
“extrinsic” to the main charge. If evidence is found to be intrinsic, it is not necessary to go through
a Rule 404(b) analysis for its admission. Evidence not considered intrinsic may still be
admitted if it fits within one of the exceptions of 404(b).
Over the years, lawyers and judicial officers at every level have had difficulties with what is properly
intrinsic evidence and/or 404(b) other acts evidence sought to be admitted at trial in both civil
and criminal cases. The problem still persists and is important, because the improper
admission of such evidence in a criminal case often results in a new trial.
The purpose of this article is to set forth how the Arizona Supreme Court has constantly narrowed the
definition of other acts evidence over the years to address this problem and in particular how the Court,
in the recent State v. Ferrero,
2 has further restricted the definition of intrinsic evidence.
To 404(b) or Not to (b)
BY HON. R.L. GOTTSFIELD &
HON. CRANE MCCLENNEN