My Fourth 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.

Before the amendment, there was no subsection (3)(C), and subsections (A) & (B) stated that the prosecution had to

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial

(B) do so before trial-or during trial if the court, for good cause, excuses lack of pretrial notice.

So, what was “reasonable notice” under the old Rule? That would vary from case to case. For instance, in United States v. Blackwell, 954 F.Supp. 944 (D.N.J. 1997), the court found that 3 days pretrial notice was reasonable. In United States v. Benavides, 189 F.3d 468 (5th Cir. 1999), the court found that 1 day pretrial notice was reasonable.. Meanwhile, in United States v. Strong, 2018 WL 405667 (W.D.Kent. 2018), the court “order[ed] the United States to disclose Rule 404(b) evidence to Strong no later than three weeks, or twenty-one days, before the commencement of the trial in this matter.”

According to the Committee Note to the new version of Rule 404(b),

Notice must be provided before trial in such time as to allow the defendant a fair opportunity to meet the evidence, unless the court excuses that requirement upon a showing of good cause. See Rules 609(b), 807, and 902(11). Advance notice of Rule 404(b) evidence is important so that the parties and the court have adequate opportunity to assess the evidence, the purpose for which it is offered, and whether the requirements of Rule 403 have been satisfied—even in cases in which a final determination as to the admissibility of the evidence must await trial. When notice is provided during trial after a finding of good cause, the court may need to consider protective measures to assure that the opponent is not prejudiced. See, e.g., United States v. Lopez-Gutierrez, 83 F.3d 1235 (10th Cir. 1996) (notice given at trial due to good cause; the trial court properly made the witness available to the defendant before the bad act evidence was introduced); United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994) (defendant was granted five days to prepare after notice was given, upon good cause, just before voir dire). 

The arguably key change is that the new version of Rule 404(b) defines “reasonable notice” with reference to the defendant having a “fair opportunity to meet it.” In turn, the Committee Note seems to define a “fair opportunity to meet it” as “adequate opportunity to assess the evidence, the purpose for which it is offered, and whether the requirements of Rule 403 have been satisfied.”

In the end, I imagine that many courts will not see this new language as changing the status quo and will continue to assess “reasonable notice” in the same way. But I think that defense attorneys can use thew new language of Rule 404(b) and the Committee Note to argue that notice should be given earlier and that a few days advance notice is not an “adequate opportunity to assess the evidence, the purpose for which it is offered, and whether the requirements of Rule 403 have been satisfied.”

-CM