Bad acts evidence must be fought, says Fairfax criminal lawyer

Bad acts evidence (BAE) — more succinctly prior BA evidence — might spell the difference between acquittal (if excluded at trial) or conviction in your prosecution. As a Fairfax criminal lawyer, I know that the Virginia rules of evidence say: “Except as provided in Rule 2:413 or by statute, evidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith. However, if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.” Virginia Supreme Court Rule of Evidence 2:404(b).

Bad acts evidence admissibility in Virginia focuses on whether the “legitimate probative value of such proof outweighs its incidental prejudice

Bad acts evidence admissibility in Virginia focuses on whether the “legitimate probative value of such proof outweighs its incidental prejudice. Va. S. Ct. R. Ev. 2:404(b). Patrick Brian Stambler lost his BAE challenge in his prosecution alleging incest, rape and sexual battery against his teenaged minor daughter, in the form of providing her marijuana and allowing her to consume alcohol, and assaulting his girlfriend. Stambler v. Commonwealth of Virginia, ___ Va. App. ___ (June 23, 2026). Because Stambler engaged in such behavior with marijuana and alcohol with his daughter since the age of eleven, the Virginia Court of Appeals in Stambler reasoned that this was grooming activity that, supported his daughter’s allegations against him of the prosecuted alleged crimes of rape, incest and sexual battery, and was therefore more probative than prejudicial, to show why she kept visiting him even after his alleged crimes against her commenced. Because Stambler’s daughter claimed to have witnessed Stambler assaulting his girlfriend, Stambler reasons that such assaultive behavior was more probative than prejudicial to support the prosecutor’s argument that such assaultive behavior led his daughter to delay reporting his alleged crimes against her.

Appeal to the Court’s sound discretion when arguing to bar BA evidence

Your Virginia criminal defense lawyer should appeal to your trial judge’s sound discretion when arguing to bar bad acts evidence: The “‘responsibility for balancing the probative value versus the prejudicial effect rests in the sound discretion of the trial court.’” Stambler (citation omitted). When your trial judge knows that their BAE ruling will not be disturbed on appeal unless found to be an abuse of discretion, that might enhance your ability to bar such evidence at trial.

 What should I do when the prosecutor is going to attempt to introduce BAE?

When the prosecutor is going to try to introduce bad acts evidence at your trial, your Virginia criminal defense lawyer has the option to seek to bar such evidence through a motion in limine before your trial ever begins. Clearly, your criminal defense attorney needs to preserve this issue for appeal in the event such an argument is lost, whether in limine or when your jury or bench trial is underway.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense, no matter whether the allegations are of the most damning nature or less so, against Virginia felony, misdemeanor and DUI prosecutions. Timely obtain the right Virginia criminal defense attorney for you. Jon Katz will be delighted to discuss your defenses with you during a free in-person confidential consultation about your court-pending prosecution. To schedule your meeting with Jon, please contact us at 703-383-1100, Info@KatzJustice.com or (text) 571-406-7268.