Beyound the Bar

• Publication year: 2021
• Pages: 18
• Citation: Vol. 32 No. 4 Pg. 18

BEYOND THE BAR Vol. 32 Issue 4 Pg. 18 South Carolina Bar Journal January, 2021

Taming the beast, or much ado about nothing: Amendments to Federal Rule of Evidence Rule 404(b)

By Warren Moïse

The news is out!

On December 1, 2020, Santa Clause came to town. His sleigh was packed with gifts for federal criminal defendants. What’s this all about, you ask? Has that beastly Rule 404(b) been amended and made more fair somehow? Even more to the point, is my

I don’t think so. Homey don’t play that. It was just a tweak, not a big fix. Rule 404(b) has been improved a little but don’t get your hopes up. The prison doors are not flung open.

Rule 404 is one of the most difficult, and most-often cited, evidence rules in the corpus evidentia. The problem is that Rule 404(b) runs counterintuitive to basic common sense. At least as I see it.

What is Rule 404(b) all about in the first place?

Rule 404(b) is typically used by a prosecutor to introduce evidence of other bad acts done by the defendant. For example, assume that a defendant is being tried for illegally manufacturing methedrine; however, as part of his defense, the defendant claims that he doesn’t know how to manufacture drugs, including methedrine. In this scenario, a United States Attorney might try to introduce the prior arrest or conviction for manufacturing methedrine into evidence, not to show bad character, but to show he had knowledge of how to make that drug.

Although it certainly feels like it to the accused, Rule 404(b) evidence (a.k.a. “bad acts evidence” or “propensity evidence”) is not character evidence. In fact, if you ask the judge to introduce the prior methedrine conviction into evidence as “character evidence,” she’ll likely refuse your request. Now, let’s look at the Rule as it now appears with its changes.

Federal Rule 404. Character Evidence; Other Crimes, Wrongs, or Other Acts.^[1] (b) Other Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or other 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; Notice in a Criminal Case.

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. On request by a defendant in a criminal case, the prosecutor must:

(3) Notice in a...