Circuits apply different tests for admitting other act evidence under FRE 404(b)
FRE 404(b) is an important rule that is regularly the subject of in limine and other motions. FRE 404(b) generally prohibits the admission of other crimes, wrongs or acts "to prove the character of a person in order to show action in conformity therewith." See, e.g., United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007) ("Rule 404(b) is designed to guard against the inherent danger that the admission of ‘other acts’ evidence might lead a jury to convict a defendant not of the charged offense, but instead of an extrinsic offense.")
However, FRE 404(b) allows the introduction of other acts evidence in limited circumstances if it bears on a relevant issue, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. It is interesting that the circuits apply FRE 404(b) differently. One Federal Evidence Review survey on this issue highlighted that the circuits apply different foundational requirements for FRE 404(b):
- Three circuits apply two elements (including the First, Fifth and DC Circuits)
- Two circuits use three elements (including the Sixth, Eleventh Circuits)
- Six circuits employ four elements (Second, Third, Fourth, Seventh, Eighth, Tenth Circuits)
- One circuit provides for five elements (Ninth Circuit) (sometimes stated as four)
See Lead Story: "FRE 404(b) Diverging Elements: A Circuit Split Ripe For Certiorari Review? ," 3 FED. EVID. REV. 756 (June 2006).
Given the difference in applying the rule depending on the jurisdiction, it is possible that the same or similar evidence may be admissible in some circuits but not in others. The question is whether the Supreme Court may decide to resolve this split on the FRE 404(b) elements in an appropriate case.
Comments
Post new comment