Res Gestae

(1) Charge: violation of federal firearms statute by unlawfully receiving a firearm transported interstate after D had previously been convicted of a crime punishable by more than one year in prison. At trial, W, a druggist, testified for the prosecution that D had entered his pharmacy with a prescription that W recognized as forged. When W asked Dto remain in the store so the police could check the prescription, D bolted, and W gave chase. During the chase D dropped the drugs and gun over the side of a wall. Dobjected to the evidence of the alleged forged prescription.

(2) Charge: illegal sale of narcotics. At trial a state narcotics agent is offered by the prosecution to testify that he and another agent had visited D's house together and that each had purchased a can containing some substance, which the agents believed was marijuana. D objects to the testimony concerning the sale to the other agent.

Remember the words, "other purposes, such as" in Rule 404(b). Evidence may be admitted when it is necessary to tell the whole story of the events in issue at trial even though the evidence tends to show the commission of other crimes or a criminal character. Such "res gestae" evidence is one example of the nonapplication of the general propensity rule that is not listed in the illustrations specified by Rule 404(b).

The evidence of the forged prescription in (1) must be admitted so that the jury can understand the facts central to the gun possession charge. Without the evidence, the prosecution's case is virtually unintelligible. The term "res gestae" has been used to describe this "exception" to Rule 404(a), even though there is no explicit mention of it in 404(b).The case for admission of the "other sale" evidence under the "res gestae" exception is weaker in (2). The purchase of marijuana by one agent can be understood as a "complete story" without reference to the contemporaneous purchase by the second narcotics agent. However, if D raises the defense of entrapment, evidence of the second sale becomes directly relevant to rebut the entrapment defense on the issue of predisposition. This is analogous to a defendant opening the door to character evidence by raising the issue.

Chief Justice Cardozo alludes to the res gestae exception in Zackowitz when he states, "Different, also, would be the question if the defendant had been shown to have gone forth from the apartment with all the weapons on his person. To be armed from head to foot at the very moment of an encounter may be a circumstance worthy to be considered, like acts of preparation generally, as proof of preconceived design." Yet Cardozo cautions against unthinking use of res gestae: "what was proved may have an air of innocence if it is styled the history of the crime."

There is often an overlap between res gestae evidence and evidence of preparation or plan. Res gestae goes to all acts that are necessary to fill in the factual context of the crime charges. These facts may be happenstance, or they may be criminal in nature and reflect poorly on the defendant. Either way, they are independently relevant for descriptive purposes. In contrast, evidence of preparation and plan is admissible because specific inferences highly pertinent to the crime charged follow from the very existence of preparation or plans.

Often the distinction between res gestae and preparation evidence is blurred. The hypothetical posed by Cardozo in Zackowitz is an example. The crucial issue in Zackowitzwas the state of mind of the defendant at the moment of the homicide. If the defendant had been carrying all of his weapons, this fact would be an inextricable part of understanding the whole event, that is, res gestae. At the same time, the fact of carrying these weapons is evidence of preparation from which a trier of fact can make inferences specifically about premeditation (state of mind) by the defendant. Had state of mind not been an issue, admission of the evidence of the guns could not have been justified on this basis, but this information probably would still be needed to describe the whole picture.