My Third 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.

You can compare subsections (3)(A) & (B) with the prior version of Rule 404(b), which merely required the prosecution to “provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial.” Under this prior version,

courts…routinely denied requests by defendants for greater particularity in 404(b) notice. See, e.g., United States v. Kern, 12 F.3d 122, 124 (8th Cir.1993) (holding that the government’s statement that it “might use evidence from some local robberies” was sufficient to describe the general nature of the acts under Rule 404(b)); United States v. Schoeneman, 893 F.Supp. 820 (N.D.Ill.1995) (holding that the government need not “turn over specific evidentiary detail” in 404(b) notice); United States v. Rusin, 889 F.Supp. 1035, 1036 (N.D.Ill.1995) (rejecting defendant’s argument that Rule 404(b) notice requires the government to disclose “dates, places, and persons involved in the specific acts; documents that pertain to the acts, a statement of the issues to which the government believes such evidence may be relevant….”). United States v. Watt, 911 F.Supp. 538 (D.D.C. 1995). 

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

The prosecution must not only identify the evidence that it intends to offer pursuant to the rule but also articulate a non-propensity purpose for which the evidence is offered and the basis for concluding that the evidence is relevant in light of this purpose. The earlier requirement that the prosecution provide notice of only the “general nature” of the evidence was understood by some courts to permit the government to satisfy the notice obligation without describing the specific act that the evidence would tend to prove, and without explaining the relevance of the evidence for a non-propensity purpose. This amendment makes clear what notice is required.

So, let’s take a look United States v. Kern, in which the prosecution was allowed to merely provide notice that it “might use evidence from some local robberies.” Specifically, the two defendants in Kern were charged with three bank-robbery-related counts. And the Rule 404(b) evidence consisted of evidence of a separate hotel robbery to prove that the defendants “intended to enter into an agreement or understanding to commit robbery and that they understood the purpose of this agreement.”

Under the new version of Rule 404(b), it wouldn’t be enough for the prosecution to give notice that it “might use evidence from some local robberies.” Instead, it would need to provide notice that it might use evidence of the robbery of [name] hotel on [date], not to establish “once a robber, always a robber,” but instead to establish intent to conspire.

-CM