United States: Third Circuit Constricts Rule 404(b) Admissibility By Requiring That Evidence Not Only Be Offered For A Permissible Purpose, But That It Not Give Rise To A Propensity Inference

Federal Rule of Evidence 404(b) permits evidence of non-charged crimes, wrongs, or acts to be admitted if probative of a purpose under the Rule, such as motive, intent, or lack of mistake.  The Rule is often referred to as a rule of inclusion, rather than exclusion, because it favors the admissibility of such evidence, and the Supreme Court in Huddleston v. United States, 485 U.S. 681 (1988) established a four-part test for admissibility: (i) the evidence has a proper evidentiary purpose under the Rule; (ii) it is relevant under Rule 402; (iii) its probative value is not substantially outweighed by its unfair prejudice to the defendant under Rule 403; and (iv) a proper limiting instruction is provided to the jury. 

But the Third Circuit recently emphasized that there is more to the first component of the Huddleston test than simply finding a ground in Rule 404(b) – such as motive – to which to stake the evidence, suggesting that the first criterion is otherwise too easily met.  Instead, the court of appeals held in reversing a conviction based in part on such evidence, the evidence which is tied to a proper purpose must still be excluded if it yields an inference of action in conformity with a defendant's character, that is, that because an act was committed in the past by the defendant, it is more likely that he committed the charged act, too.

In United States v. Smith, 2013 WL 3985005 (3d Cir., Aug. 6, 2013), the defendant was convicted of threatening with a gun several federal officers.  He had been observed standing on a street corner and did not abandon his corner when the undercover officers approached in a car, instead moving towards them and drawing a weapon before he was subdued.  Smith claimed self-defense, since he did not know that the men coming toward him were police officers and they had not identified themselves.

The government sought to prove that Smith was motivated to behave in a threatening manner and intended to assault the officers, and that he was not acting in self-defense.  Relying on the Rule 404(b) permissible purpose of showing motive, the government was allowed to introduce law enforcement officer testimony that Smith had been arrested on the same corner two years earlier for selling heroin there and that drug dealers generally use weapons. The prosecutor then summed up to the jury by characterizing Smith as a drug dealer protecting his turf, motivated to protect his corner against intruders, not by self-defense.

The Third Circuit reversed the conviction. While the Huddleston analysis did first require identification of a proper purpose for evidence of the two-year old drug deal, and the government's proffered proof of motive met that requirement, evidence "must do more than conjure up a proper purpose [; it] must also establish a chain of inferences no link of which is based on a propensity inference" (emphasis added).  Otherwise, it is too easy for prosecutors to fulfill the obligation to point to a proper purpose; if that were all that was required, then "the basic idea embodied by Rule 404(b), that simply because one act was committed in the past does not mean that a like act was again committed, would be threatened." So, the Rule 404(b) purpose for admission, at least in the Third Circuit, must be established without an inference that the defendant acted in conformity on the current occasion with the bad character shown by evidence of the earlier act.

In this case, the prior drug act evidence was only relevant to the threatening charge if jurors assumed something about Smith's bad character from the earlier charge, i.e., that he was a drug dealer, and if they further inferred that the recent incident reflected his acting as a drug dealer defending his turf.  To be sure, the court held, if Smith had been observed selling drugs on the recent occasion, then the government would have had a stronger argument for admissibility of the prior act, including as background information needed to complete the story of the crime.

At least in the Third Circuit, and perhaps by extension elsewhere, the Smith case is an important bulwark against the unfettered use of prior bad act evidence by the prosecution, and counsel may benefit by using Smith aggressively in moving to preclude such propensity-sounding evidence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.