My Fifth Post on the Changes to Federal Rule of Evidence 404(b)

As noted in Friday’s post, Federal Rule of Evidence 404(b) has been amended as of December 1, 2020. The Rule now states:

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

Although there’s no explicit language in the new version of the Rule addressing the issue, the Committee Note states that

The good cause exception applies not only to the timing of the notice as a whole but also to the timing of the obligations to articulate a non-propensity purpose and the reasoning supporting that purpose. A good cause exception for the timing of the articulation requirements is necessary because in some cases an additional permissible purpose for the evidence may not become clear until just before, or even during, trial.

I think this makes sense. Imagine, for instance, that Dan is charged with burglary based on breaking into Vince’s home and cracking his safe. Moreover, assume that the prosecution has evidence that Dan has cracked two other safes in the past five years. The prosecution might give written notice pre-trial that it plans to introduce evidence of Dan’s two prior acts of safecracking to prove common plan/modus operandi.

Then, however, imagine that during opening statement, defense counsel says that Dan is a simple man who would have no idea how to crack a safe. Or, imagine that during Dan’s testimony he testifies that he is a simple man who would have no idea how to crack a safe. In response, the prosecution might say that it had no idea that Dan planned to contest that he had the knowledge to be able to crack a safe (and might even claim that it has the opposite assumption based on discovery it received from the defense). In such a case, the judge might find good cause to allow the prosecution to now use the prior crimes evidence to prove knowledge of how to crack a safe.

-CM