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Abstract

The smorgasbord ploy probably plays only a minor role in the admission of other crimes evidence. But it offers us a nice window into the uses and abuses of Rule 404(b) of the Federal Rules of Evidence (“the Rules”) and its state clones. Rule 404(b)’s drafters may have supposed that trial judges would look among the illustrative uses in Rule 404(b) and select the one or two that seem most apropos to the case before them. However, the practitioners of smorgasbordism do not make any choices but instead list all (or most) of the illustrative uses to support the admission of the other crimes. We can surmise the judge calculates that this will avoid appellate reversal by giving appellate judges more grounds for affirming a decision to admit other crimes evidence. Moreover, it saves work; the judge need not put in as much effort to use the ploy as she would have to in deciding which of the adversaries has analyzed admissibility correctly.

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