F 375 Evidence Of Uncharged Offense To Prove Identity, Intent, Common Plan, Etc.

F 375 Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, Etc.

TABLE OF CONTENTS
F 375 Inst 1 (Option A) Uncharged Offense: Improper Reference To “Evidence Of”
F 375 Inst 2 (Option B) Other Behavior: Improper Reference To “Evidence Of”
F 375 Inst 3 (a-c) Requirement Of Proof Beyond A Reasonable Doubt If The Other Offense Or Act Is An Essential Fact
F 375 Inst 4 Uncharged Criminal Acts: Intent And/Or Mental State As Preliminary Fact
F 375 Inst 5 Other Uncharged Crimes: Must Be Limited To Applicable Count
F 375 Inst 6 Other-Crimes Evidence As To Associate Of The Defendant
F 375 Inst 7 (a & b) Gang Evidence Modification
F 375 Inst 8 Uncharged Offenses: Specification Of Instructions Applicable To Determination Of Uncharged Offense
F 375 Inst 9 (a-c) Uncharged Acts: Admissibility Of Third Party Guilt Evidence
F 375 Inst 10 (a-d) Reverse 1101(b): Using Uncharged Acts Or Misconduct To Bolster The Defense
F 375 Inst 11 Uncharged Acts: Limited To Special Circumstances

Return to Series 300 Table of Contents.

F 375 Inst 1 (Option A) Uncharged Offense: Improper Reference To “Evidence Of“

*Title: Modify CC 375, Instruction Title, as follows [deleted language is stricken]:

Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.

*Modify CC 375, Introductory Sentence Alternative A, as follows [added language is underlined; deleted language is stricken]:

[The People presented evidence contend that the defendant committed ((another/other) offense[s]/the offense[s] of __________ <insert description of

alleged offense[s]>) that (was/were) not charged in this case.]

*Modify paragraph 2, sentence 1 as follows:

You may consider this any evidence of [this] [these] alleged offense[s] only if the People have proved by a preponderance of the evidence that the defendant in fact committed the (uncharged offense[s]/act[s]).

Points and Authorities

Informing the jurors that the defendant has presented evidence of a particular matter is an improper comment on the evidence. (See FORECITE F 3500.2 Inst 1.)

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 375 Inst 2 (Option B) Other Behavior: Improper Reference To “Evidence Of“

*Title: Modify CC 375, Instruction Title, as follows [deleted language is stricken]:

Evidence of Uncharged Offense Other Behavior to Prove Identity, Intent, Common Plan, etc.

*Modify paragraph 1, Introductory Sentence Alternative B, as follows [added language is underlined; deleted language is stricken]:

[The People presented evidence contend that the defendant committed (of other behavior by the defendant that was not charged in this case/that the defendant __________ <insert description of alleged conduct admitted under Evid. Code, §1101(b)>).]

*Modify paragraph 2, sentence 1 as follows:

You may consider this any evidence of this alleged other behavior only if the People have proved by a preponderance of the evidence that the defendant in fact committed the (uncharged offense[s]/act[s]) alleged other behavior.

Points and Authorities

See FORECITE F 375 Inst 1 (Option A).

F 375 Inst 3 (a-c) Requirement Of Proof Beyond A Reasonable Doubt If The Other Offense Or Act Is An Essential Fact

*Add to CC 375, Alternative A and B, after paragraph defining preponderance burden:

Alternative a [CALCRIM 376 Format]:

However, do not use this preponderance standard if the uncharged (offense/act) is an essential fact necessary for conviction. Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.

Alternative b:

However, if you conclude that the other (offense/act) is an essential fact alleged in the case against the defendant, you may not rely on it to find the defendant guilty unless it has been proven beyond a reasonable doubt that the defendant committed it.

This means that unless you have found the defendant guilty beyond a reasonable doubt of the uncharged offense you may not use that offense to convict the defendant of any other charged offense.

Alternative c [Including Intent And Mental State]:

If you consider the other (offense/act) to be an essential fact, you may not rely on it in whole or part to convict the defendant unless you first find beyond a reasonable doubt that the defendant committed the offense with the required intent and mental state.

Points and Authorities

Other Offense Or Act As Essential Fact.—Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.“ [Emphasis added.] (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]].) It requires the state to prove ” ‘every ingredient of the offense beyond a reasonable doubt ….’ “ (Sandstrom v. Montana (1979) 442 US 510, 524 [61 LEd2d 39; 99 SCt 2450, quoting Patterson v. New York (1977) 432 US 197, 215 [53 LEd2d 281; 97 SCt 2319].) Not only does this requirement apply to the evidence as a whole, but also to each fact from which the defendant’s guilt is inferred. The California Supreme Court explained this principle in People v. Watson (1956) 46 C2d 818, 831: “properly interpreted, CJ 28 [now CJ 2.01 and CJ 2.02] applies the doctrine of reasonable doubt not to proof of miscellaneous collateral or incidental facts, but only to proof of ‘each fact which is essential to complete a chain of circumstances that will establish the defendant’s guilt.’ “ Accordingly, the Watson court held that in any case which rests essentially on circumstantial evidence, it would be error to refuse to instruct the jury on this basic principle. Further, in any such case, it would be error for the trial court to in any way mislead the jury into thinking that it was not necessary that each fact essential to complete a chain of circumstances establishing guilt be proved beyond a reasonable doubt. (People v. Carter (1957) 48 C2d 737, 758-59, 760-61.) A conviction violates due process if it is based upon an amalgamation of facts none of which have been proven beyond a reasonable doubt. (See People v. Deletto (1983) 147 CA3d 458, 472; People v. Hefner (1981) 127 CA3d 88, 96-7.)

It is true, of course, that neither the defendant’s guilt of the uncharged offense nor the relevance of prior uncharged offenses need be proven beyond a reasonable doubt as a prerequisite to the admissibility of the uncharged offense. (See People v. Simon (1986) 184 CA3d 125, 134, fn 6 [admissibility of other crimes evidence governed by preponderance standard]; see also People v. Albertson (1944) 23 C2d 550, 557.) However, this rule does not permit the jury to utilize the evidence to convict the defendant without finding that the other crime has been proven beyond a reasonable doubt. Such a result would violate due process by allowing an “ingredient of the offense“ to be proven under a lesser standard. “An essential element of any crime is, of course, that the defendant is the person who committed the offense. Identity as the perpetrator must be proved beyond a reasonable doubt.“ (People v. Hogue (1991) 228 CA3d 1500, 1505.)

Hence, the jury is actually faced with a two-step process regarding other crimes evidence. First, before the evidence may even be considered, it must be proven under the preponderance standard. (See EC 403.) Second, before the other crime may be utilized to convict, it must be proven beyond a reasonable doubt. (In a court trial, the judge performs a similar two-step process.) (See FORECITE F 319 Inst 1.)

Accordingly, to avoid unconstitutional use of prior uncharged offenses, the standard CALCRIM instruction regarding the standard of proof as to uncharged offenses should be modified to make it clear to the jury that: (1) the evidence may not even be considered unless its relevance and the defendant’s commission of the uncharged offense is established by a preponderance of the evidence (EC 403); and (2) the evidence may not be utilized to convict the defendant unless its relevance, and the defendant’s commission of the offense is proven beyond a reasonable doubt. Without such an instruction, there is a danger that the defendant’s constitutional rights to trial by jury and due process (6th and 14th Amendments) will be undermined by allowing the jury to convict with facts which have not been proven beyond a reasonable doubt.

See also CALCRIM 376, paragraph 4; CALCRIM 375, Related Issues.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 5.7 [Preliminary Facts]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

NOTES

Use of Other Charged Offenses: People v. Arias (1996) 13 C4th 92, 140-41 held that the jury need not be cautioned against considering other charged offenses as proof that the defendant is a person of bad character or of criminal disposition so long as CJ 17.02—which tells the jury to consider each charged crime separately—was given. This holding does not affect the situation where the charged offense is specifically permitted to prove an issue such as intent or identity. In such a case, the standard cautionary instructions regarding other crimes evidence under EC 1101 should be equally applicable to other charged crimes. (See People v. Ruiz (1988) 44 C3d 589, 607.)

Conflict Between CC 224/225 And CC 375: See FORECITE 375 Note 3.

RESEARCH NOTES

See FORECITE BIBLIO 2.50.

CALJIC NOTE: See FORECITE F 2.50d.

NOTE: Other offense evidence is by its nature circumstantial since such evidence is typically offered as the basis for making an inference as to some other issue. (See e.g., CC 375.)

F 375 Inst 4 Uncharged Criminal Acts: Intent And/Or Mental State As Preliminary Fact

Alternative a [Preliminary Fact: CALCRIM 375, 376, & 1400 Format—Not alone sufficient to convict/essential fact must be proved beyond a reasonable doubt]:

The prosecution contends that the defendant committed the uncharged offense of _________.

You must not consider this alleged uncharged offense, for any purpose, unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:

That the defendant committed the alleged uncharged act with the required criminal intent and/or mental state.

[Insert other material preliminary facts.]

A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.

Unless [all of you] find that [all of the above] [this] preliminary fact[s] to exist, you must [disregard the defendant’s alleged uncharged offense, for all purposes] [not consider the allegeduncharged offense against the defendant].

If you [all] find the [all of] the above preliminary fact[s] to exist, then you may consider the alleged uncharged offense [for the limited purpose of __________________] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.

Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.

*Modify CC 375, paragraph 3, sentence 1 as follows [added language is underlined]:

Alternative b:

You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the (uncharged offense[s]/act[s]) with the required intent and/or mental state.

Points and Authorities

Intent And/Or Mental State As Preliminary Fact – To allow juror consideration of a prior uncharged criminal act committed by the defendant, the prosecution must establish that the defendant committed the prior act with the required intent and/or mental state. (People v. Simon (1986) 184 CA3d 125, 130-31; EC 1101(b); cf., People v. Garelick (2008)161 CA4th 1107, 1115-16 [distinguishing Simon in a child pornography case where the sheer volume of pornography found in different places on the defendant’s computer was relevant to show “the diminishing likelihood that the images’ presence on his computer was inadvertent”].)

Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.

Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)

Whether the Jurors “Must“ Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.

Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.

Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.

Identification Of Parties.—See FORECITE F 100.2 Note 1

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 5.7 [Preliminary Facts]

Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)

CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)

CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.

RESEARCH NOTES

See FORECITE BIBLIO 2.50.

CALJIC NOTE: See FORECITE F 2.50b.

F 375 Inst 5 Other Uncharged Crimes: Must Be Limited To Applicable Count

*Add to CC 375:

You may only consider the (uncharged offense[s]/act[s]) as to Count ____ only.

Points and Authorities

See People v. Grant (2003) 113 CA4th 579 [joinder of counts required reversal where counts were not cross-admissible, prosecutor urged jury to draw impermissible inference, evidence was similar, evidence on count 1 was not strong, and court refused an instruction on non-cross-admissibility].)

Identification Of Parties.—See FORECITE F 100.2 Note 1.

FORECITE CG 5.21 [Uncharged Offenses: EC 1101(b)]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

NOTE: People v. Tufunga UNPUBLISHED (1998) 65 CA4th 287, 300-01 held that the trial court erroneously failed to limit introduction of evidence regarding a prior uncharged act to the count to which the uncharged act was relevant. [Review was granted in Tufunga on another issue People v. Tufunga (1999) 21 C4th 935.] [See Opinion Bank # O-257for a copy of the unpublished Tufunga opinion.]

CALJIC NOTE: See FORECITE F 2.50g.

F 375 Inst 6 Other-Crimes Evidence As To Associate Of The Defendant

*When appropriate, replace CC 375, introductory sentence, with:

Evidence has been received concerning the character and reputation of another witness, __________ <insert name of witness>, and of defendant’s association with that witness.

Points and Authorities

This modification was approved in People v. Garceau (1993) 6 C4th 140, 194-5.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 2.50e.

F 375 Inst 7 (a & b) Gang Evidence Modification

*Add to CC 375:

Alternative a:

Evidence has been introduced that the defendant is a member of a particular gang.

Such evidence, if believed, was not received and may not be considered by you to prove that [he] [she] is a person of bad character or that [he] [she] has a disposition to commit crimes.

Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show:

[Insert appropriate matters from CC 375].

Alternative b:

Do not consider any evidence of the defendant’s alleged association with a gang or gang members to prove that the defendant is a person of bad character or that (he/she) has a disposition to commit crimes.

Points and Authorities

Right To Limiting Instructions In General.—See FORECITE F 375 Inst 5.

Right To Limiting Instruction Re: Gang Evidence—“[G]ang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged—and thus should be carefully scrutinized by trial courts….” (People v. Carter (2003) 30 C4th 1166, 1194; see also People v. Avitia (2005) 127 CA4th 185, 194 [gang evidence was inflammatory and its only possible function was to show the defendant’s criminal disposition].) It follows, a fortiori, that a strong limiting instruction should be given when such evidence is admitted admonishing the jurors not to consider such evidence as to criminal disposition.

This instruction was given and impliedly approved in People v. Contreras (1983) 144 CA3d 749, 755, fn 2, 758; see also, People v. Garceau (1993) 6 C4th 140, 185-86.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

NOTES

Regarding expert testimony, see FORECITE F 1403 Note 13; (F 2.80 n6).

See Annotation, Admission of evidence of accused’s membership in gang, 39 ALR4th 775 and Later Case Service.

STRATEGY NOTE:

Gang evidence may be subject to constitutional challenge as prejudicial bad character evidence, see FORECITE PG VII(C)(20).

CALJIC NOTE: See FORECITE F 2.50f.

F 375 Inst 8 Uncharged Offenses: Specification Of Instructions Applicable To Determination Of Uncharged Offense

*Add to CC 375:

The following should be considered as to both the uncharged offense and the charged offense:

[List]

The following instructions should be considered only as to the charged offense:

[List]

The following instructions should be considered only as to the uncharged offense:

[Insert text of instructions applying to uncharged offense only.]

Points and Authorities

Specification Of Instructions.—Regardless of whether the preponderance or beyond a reasonable doubt standard is used, it is settled that the jury must find that the defendant committed the uncharged offense before that offense may be considered by the jury against the defendant. (See CC 375.) Thus, the jury, in effect, is presented with a trial within a trial in making the determination of whether the defendant committed the prior uncharged offense. Therefore a distinct set of instructions may be applicable to the uncharged offense. For example, if the uncharged offense involves an issue of identity—and the charged offense does not—then an instruction such as CC 315 should be given for the jury to consider in determining the defendant’s guilt as to the uncharged offense.

Moreover, when instructions may be applicable to both the charged and uncharged offenses, there may be a potential for juror confusion unless the jury is clearly informed which instructions apply to which determinations.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 2.50 n9.

F 375 Inst 9 (a-c) Uncharged Acts: Admissibility Of Third Party Guilt Evidence

*Add to CC 375:

Alternative a:

In evaluating whether you have a reasonable doubt as to the defendant’s guilt, consider any evidence that _______________ <name of third party> committed the crime including any evidence of [an] uncharged offense[s] committed by _______________ <name of third party>. Such uncharged offense[s] may alone be sufficient to leave you with a reasonable doubt as to the defendant’s guilt.

Alternative b:

There has been evidence received regarding an uncharged act which was allegedly similar in nature to the charged offense.

If ___________________ <third party> committed the uncharged act, [this may be sufficient to leave you with a reasonable doubt that the defendant committed the charged offense] [you may infer that _________________<third party> was the person who committed the charged offense].

Please remember, however, the defendant is not required to prove that _______________ <third party> committed the other acts or the charged conduct. Rather, it is the prosecution which must prove the defendant’s guilt beyond a reasonable doubt. If, after consideration of all the evidence, including any evidence that __________________ <third party> committed the other act[s], you have a reasonable doubt that the defendant committed the charged offense you must find [him] [her] not guilty.

Alternative c:

You have heard evidence that _________________ <name of third party> previously committed an act similar to the one charged in this case. In attempting to decide whether the prosecution has proven the defendant guilty beyond a reasonable doubt, consider the evidence of this alleged uncharged similar act together with all the other evidence. If you have a reasonable doubt that the defendant is the person who committed the charged offense, you must acquit the defendant.

Points and Authorities

Right To Instruction.—The defendant’s constitutional rights to present a defense, compulsory process, trial by jury, and due process, require admission of evidence that a third party may have committed the charged offense. (See FORECITE F 3301 Inst 1; F 4.020a.) These same protections should also make admissible evidence that a third party may have committed an uncharged act which has been offered as evidence against the defendant under EC 1101 and/or EC 1108; EC 1109. (Cf. People v. Basuta (2001) 94 CA4th 370 [third party guilt evidence as to prior act alleged by the defense to be the cause of death].)

Alone Sufficient For A Reasonable Doubt.—See FORECITE F 301 Inst 13.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 4.020 n2.

F 375 Inst 10 (a-d) Reverse 1101(b): Using Uncharged Acts Or Misconduct To Bolster The Defense

Alternative a:

Evidence has been presented of an uncharged offense. It is the prosecution’s theory that the [alleged] uncharged offense is so similar to the charged offense that both offenses must have been committed by the same person.

However, it is the defendant’s theory that [he] [she] did not commit the uncharged offense. Under this theory, evidence that the defendant did not commit the uncharged offense would permit an inference that [he] [she] did not commit the charged offense.

[Please remember, however, that the defendant is not obligated to prove [his] [her] offenses. Unless you all agree that the prosecution has proven the defendant guilty of the charged offense beyond a reasonable doubt, you must acquit [him] [her].]

Alternative b:

You have heard evidence of [an] uncharged act[s] which is alleged to be similar to the offenses now charged against the defendant. If you have a reasonable doubt as to whether the defendant committed [any of] the uncharged act[s] this alone may be sufficient to leave you with a reasonable doubt that the defendant committed the charged offense.

Alternative c:

There has been evidence received of an uncharged act which was allegedly similar in nature to the charged offense.

If ___________________ <third party> committed the uncharged act, [this may be sufficient to leave you with a reasonable doubt that the defendant committed the charged offense] [you may infer that _________________ <third party> was the person who committed the charged offense].

Please remember, however, the defendant is not required to prove that _______________ <third party> committed the other acts or the charged conduct. Rather, it is the prosecution which must prove the defendant’s guilt beyond a reasonable doubt. If, after consideration of all the evidence, including any evidence that __________________ <third party> committed the other act[s], you have a reasonable doubt that the defendant committed the charged offense, you must find [him] [her] not guilty.

Alternative d:

There has been evidence received of an uncharged act which was allegedly similar in nature to the charged offense.

If you have a reasonable doubt that the defendant was present when the uncharged act was committed, [you may infer that the defendant did not commit the charged offense] [this may leave you with a reasonable doubt that the defendant committed the charged offense].

Points and Authorities

Ordinarily, evidence of uncharged acts or crimes is offered by the prosecution. However, evidence that the defendant did not commit a similar uncharged crime (e.g., on the basis of alibi, third party guilt, misidentification) supports an inference that the defendant did not commit the charged crime. Therefore, the defense should have the right to present evidence of uncharged crimes and argue that the defendant did not commit the uncharged crime, thus giving rise to an inference that the defendant did not commit the charged crime due to the similarity between the two crimes. (See U.S. v. Stevens (3rd Cir. 1991) 935 F2d 1380, 1404-05.)

“The syllogism goes as follows. In view of the many parallels between the two crimes, one person very likely committed both; and because [defendant] was exonerated by [the victim of the other offense] … [defendant] was not that person. The critical question, of course, is one of similarity.“ (Stevens, 935 F2d at 1401.)

“To introduce other crimes evidence the defendant need not show that there has been more than one similar crime, that he has been misidentified as the assailant in a similar crime, or that the other crime was sufficiently similar to be called a ‘signature’ crime. Although those criteria are relevant to measuring the probative value of a defendant’s proffer, the criteria are not necessarily absolute barriers to its admission. Rather, a defendant must demonstrate that the ‘reverse FRE 404(b)’ evidence has a tendency to negate his guilt and that it is substantially more probative than prejudicial to the prosecution.“ (Wharton’s Criminal Evidence (West, 14th ed. 1986) §§4:40, p. 434.) Accordingly, other crime evidence may be admitted on a lower showing of similarity in a “reverse FRE 404(b)“ case because the element of prejudice to the defendant need not be considered. (See e.g., Stevens, 935 F2d at 1404; New Jersey v. Garfole (NJ 1978) 388 A2d 587, 591.)