Quick Summary of the 5 Changes to Federal Rule of Evidence 404(b)

Federal Rule of Evidence 404(b) has been amended as of December 1, 2020. Here is a quick summary of the five changes to the Rule:

•The prosecution now has an affirmative obligation to give notice of its intent to use Rule 404(b) evidence (the defense no longer needs to request notice);

 

•The prosecution’s notice needs to be in writing (oral notice no longer suffices);

 

•The prosecution’s notice must (1) identify the evidence that it intends to offer; (2) articulate a non-propensity purpose (e.g., knowledge); and (3) the basis for concluding that the evidence is relevant (merely describing the “general nature” of the evidence no longer suffices);

 

•The prosecution must provide “reasonable notice” of its intent to use such evidence, with “reasonable notice” being notice that allows the defendant a fair opportunity to meet it, i.e., an adequate opportunity to assess the evidence, the purpose for which it is offered, and whether the requirements of Rule 403 have been satisfied; and

 

•The court may find good cause for the prosecution giving late notice of (1) its intent to use Rule 404(b) evidence; and/or (2) additional permissible purposes under Rule 404(b). 

-CM