§ 11.08 Notice Requirement

• Jurisdiction: United States

§ 11.08 Notice Requirement

Because of the unfair prejudice associated with other-acts evidence, advance notice of the prosecution's intent to introduce this evidence is critical.⁶⁹ Justice Brennan once wrote: "Only pretrial disclosure of such evidence will allow the defense adequate opportunity to investigate the claim of misconduct and to prepare objections to admission."⁷⁰In 1991, Congress amended Rule 404(b) to include a notice provision. Several states also adopted notice provisions, either by court rule⁷¹ or decision.⁷²

A related issue concerns the adequacy of the notice.⁷³ For example, in one case, the prosecution gave notice of its intent to introduce evidence of accused's repeated distribution of methamphetamine over a 12- to 18-month period. However, the prosecution did "not give any notice about evidence of prior incidents of Carrillo's personal use of methamphetamine, as opposed to distribution. Therefore, the record establishes that the government did not comply with Rule 404(b)'s notice requirement."⁷⁴ In determining the adequacy of the notice, courts consider "(1) the time when the government could have learned of the availability of the evidence through timely preparation for trial; (2) the extent of prejudice to defendant from lack of time to prepare; and (3) how significant the evidence is to the government's case."⁷⁵

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Notes:

^[69] See Boyd v. United States, 142 U.S. 450, 458 (1892) ("No notice was given by the indictment of the purpose of the government to introduce proof of prior robberies.").

^[70] Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? A Progress Report, 68 Wash. U. L.Q. 1, 12 (1990). See also Imwinkelried, The Worst Surprise of All: No Right to Pretrial Discovery of Prosecution's Uncharged Misconduct Evidence, 56 Fordham L. Rev. 247 (1987).

^[71] E.g., Minn. R. Crim. P. 706; Fla. Stat. § 90.404(2)(b)(1); Tex. R. Evid. 404(b).

^[72] E.g., State v. Gray, 643 P.2d 233, 236 (Mont. 1982) (prosecution must provide written notice, including a statement of purpose for which other-acts evidence will be offered).

^[73] See United States v. Blount, 502 F.3d 674, 678 (7th Cir. 2007) ("The real question, though, is whether the notice was adequate. Mindful of Rule 404(b)'s requirement that the government provide the 'general nature' of the evidence, courts have not been stringent in this regard.").

^[74] United States v. Carrillo, 660 F.3d 914, 927 (5th Cir. 2011).

^[75] United States v. Green, 275 F.3d 694, 701 (8th...