Also known as: motive & opportunity · motive, opportunity
Written by attorneys · grounded in primary & secondary sources — see below
A permissible non-character purpose under evidence rules for which other crimes, wrongs, or acts may be introduced when relevant to show why a person acted or had the means to act as alleged.
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Carla, a cashier at MetroMart, faces trial for orchestrating fraudulent returns using a counterfeit receipt template. The prosecution offers evidence that three years earlier at another store Carla recruited friends to execute identical fake returns with the same template. The evidence is admitted to prove Carla's intent to defraud and her common plan rather than to show she is a habitual thief.
Corporate officers at Meridian Motors sell large blocks of company stock shortly before negative earnings are announced. Shareholders suing under Rule 10b-5 plead scienter by alleging the officers possessed both motive to conceal the bad news until after their trades and opportunity through control of disclosure policies. The pleading survives dismissal because the facts support an inference of fraudulent intent.
Motive and opportunity are listed as permissible non-character purposes. Propensity evidence invites the jury to conclude that a person acted in conformity with a character trait. When offered only to prove character and conformity, the evidence is barred. When tied to a specific non-propensity purpose such as motive or opportunity, the evidence may be admitted if it survives Rule 403 balancing.
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Corporate insiders who trade while possessing inside information have a motive to conceal adverse facts and an opportunity through control of disclosures. Courts have accepted such allegations as one method of pleading scienter under Rule 10b-5 both before and after the PSLRA, provided the facts are pleaded with particularity.
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The prosecutor must give reasonable pretrial notice of the evidence and the non-character purpose for which it is offered. The notice allows the defendant a fair opportunity to meet the evidence and enables the court to evaluate admissibility under Rule 404(b)(2) and Rule 403.
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Similarity strengthens admissibility when it supports a non-character inference such as a common plan or absence of mistake. The same similarity weakens admissibility if it invites only a propensity inference that the defendant acted in conformity with a dishonest character. Courts admit the evidence when a permissible purpose is genuinely articulated and the probative value is not substantially outweighed by unfair prejudice.
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