My Second Post on the Changes to Federal Rule of Evidence 404(b)
As noted in yesterday’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.
One change from the old version of Rule 404(b), as discussed in yesterday’s post, is that the defense no longer needs to request notice of the prosecutor’s intent to use Rule 404(b) evidence; instead, there is an affirmative obligation on the prosecution to provide such notice. Today’s post looks at the type of notice that now suffices.
As you can see, Rule 404(b)(3)(C) now states that the prosecution must provide reasonable notice of its intent to use Rule 404(b) “in writing before trial” unless there is good cause for later disclosure. This replaces previous language that did not require that the notice be in writing. According to the Committee Note,
The pretrial notice must be in writing—which requirement is satisfied by notice in electronic form. See Rule 101(b)(6). Requiring the notice to be in writing provides certainty and reduces arguments about whether notice was actually provided.
So, going back to yesterday’s example, assume that Dana is charged with arson and that the prosecution plans to use prior arsons by Dana to prove common plan/modus operandi. It now would not suffice for the prosecution to orally tell defense counsel over the phone or in person that she plans to use these prior fires at trial; instead, she would need to provide old school written notice or new school electronic notice.
You can see why this new version of the Rule makes sense based on cases like Barnstein v. State, 2006 WL 59400 (Tex.App. 2006), where the defendant was charged with shooting and killing a Hereford cow and the prosecution sought to introduce evidence of other cow shootings by the defendant under Rule 404(b). At trial,
the State alleged that even if it failed to provide Barnstein with reasonable written notice, Barnstein had oral notice of the State’s intent to use the extraneous acts at trial. The State’s attorney alleged that he and Barnstein’s trial attorney had a telephone conversation sometime before the last jury trial setting, which took place in late June, in which they discussed the State’s intent to introduce at trial evidence of the other cattle shootings.
According to the court,
Rule 404(b) does not set forth a formal method of conveying notice…..However, it does not expressly require written notice….Written notice is preferred though, and when the State relies on oral notice to satisfy the notice requirement of rule 404(b), it should describe the content of that notice to the trial court on the record.
So, yeah. With oral notice, you can get into a “he said, she said” situation about whether notice was given and/or the content of notice. With written notice, you (likely) know whether notice was sent and received, and you definitely know the content of that notice.
-CM