CHARACTER ASSASSINATION: AMENDING FEDERAL RULE OF EVIDENCE 404(B) TO PROTECT CRIMINAL DEFENDANTS

Introduction

“[E]very man is entitled to be valued by his best moment.” 1 1 6 Ralph Waldo Emerson, Conduct of Life, in The Complete Works of Ralph Waldo Emerson 1, 287 (1904). ... Close

Ralph Waldo Emerson

 

Imagine a routine traffic stop in which officers decide to search the vehicle due to suspected drug activity. Rather than submitting to the search, the occupant of the vehicle drives off, leading officers on a high-speed chase. Brought to a stop by a tactical maneuver, the suspect flees on foot into the woods and evades capture. A subsequent search reveals dis­tribution quantities of cocaine, large amounts of cash, and loaded weapons in the vehicle. Almost two years later, a suspect is arrested and charged with drug offenses resulting from the cocaine found in the car. His sole defense at trial is that the prosecutor has the wrong man and that he was not the occupant of the vehicle. In response, the prosecutor seeks to introduce the defendant’s dissimilar, unrelated ten-year-old prior con­viction for possession of cocaine with intent to distribute. The defense objects: “You can’t use his prior offenses to prove he is a drug-dealing sort—nothing about this prior conviction helps resolve the only real dis­pute in this case, which is about the identity of the perpetrator.” The trial judge overrules the objection and the defendant is convicted in connec­tion with the traffic-stop incident. Of course he is—because what jury could ignore the fact that he had “done it before”? On appeal, the defend­ant’s conviction is affirmed by the appellate court in a cursory opinion which concludes that there was no abuse of discretion in the trial court’s admission of the defendant’s prior conviction to show his “know­ledge” and “intent.”

In reality, there is no need to use any imagination whatsoever to develop this scenario—it is one that is consistently replayed in legions of cases in the federal reporters, particularly in federal drug prosecutions. 2 2 See, e.g., United States v. Smith, 789 F.3d 923, 929–30 (8th Cir. 2015) (affirming admission of defendant’s eight-year-old conviction for possession of cocaine with intent to distribute to prove “knowledge” and “intent”). ... Close Although every capable attorney knows that past misdeeds are not admis­sible to prove a defendant’s criminal conduct, the truth is that Federal Rule of Evidence 404(b) is used to admit evidence of other crimes, wrongs, and acts in criminal trials every day. In fact, Federal Rule of Evidence 404(b) is the most frequently utilized and cited rule of evi­dence and “has generated more published opinions than any other sub­section of the rules.” 3 3 1 Edward J. Imwinkelried et al., Courtroom Criminal Evidence § 901, LexisNexis (6th ed. 2016) [hereinafter Imwinkelried et al., Courtroom Criminal Evidence]. The Advisory Committee has made similar findings:
“Rule 404(b) has emerged as one of the most cited Rules in the Rules of Evidence. And in many criminal cases evidence of an accused’s extrinsic acts is viewed as an important asset in the prosecution’s case against an accused. Although there are a few reported decisions on use of such evi­dence by the defense, see, e.g., United States v. McClure, 546 F.2d 670, 672–73 (5th Cir. 1990) (acts of informant in entrapment defense), the overwhelming number of cases involve introduction of that evidence by the prosecution.”
Fed. R. Evid. 404(b) advisory committee’s note to 1991 amendment. ... Close

The prohibition on character evidence is a time-honored tenet of evidence law. The American adversary system was designed to convict defendants based upon their conduct and not based on their general char­acter or past misdeeds. Rule 404(b) was designed to further this purpose as a rule of exclusion, prohibiting evidence of uncharged acts offered to prove a person’s character (most often the criminal defen­dant’s charac­ter) in order to demonstrate his or her conduct on the occasion in question. 4 4 Fed. R. Evid. 404(b)(1). ... Close To accommodate cases in which a defendant’s other acts may be probative for another noncharacter purpose, Rule 404(b)(2) expressly authorizes admission of other-acts evidence to prove matters like motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. 5 5 Fed. R. Evid. 404(b)(2). The phrase “other acts”—often used by law professors—is intended to describe acts that are not part of the crime charged. Another phrase often used is “uncharged misconduct.” Reference throughout this Article to “acts” and “mis­conduct” covers evidence of bad acts even if the defendant has not been convicted of those acts. See Huddleston v. United States, 485 U.S. 681, 687–90 (1988) (holding that uncharged misconduct evidence is potentially admissible if the government can establish a prima facie case that the defendant committed the act). ... Close For example, evidence that a criminal defendant stole a key that was used to gain access to a business he is charged with robbing would be admissible during his robbery prosecution to prove preparation. In such a case, the theft of the key is not relevant solely because it shows the defendant’s criminal ten­dencies; rather it is crucial to demonstrate his ability to commit the charged robbery.

Notwithstanding its origins as part of a rule with an exclusionary pur­pose, Rule 404(b) has been characterized by many federal circuit courts as a rule of inclusion. 6 6 See, e.g., United States v. Geddes, 844 F.3d 983, 989 (8th Cir. 2017). ... Close Treating the Rule as one of inclusion, fed­eral courts routinely admit other-acts evidence, especially in drug cases like the one envisioned above. This occurs even when the relevance of the defendant’s uncharged acts depends on the defendant’s propensity to behave in certain ways and even when the defendant has not contested elements of the charged offense that the other-acts evidence would be used to prove. 7 7 See Smith, 789 F.3d at 930 (rejecting defendant’s argument that the uncharged misconduct was irrelevant to the sole dispute in the case). ... Close Utilizing the applicable Rule 403 balancing standard that favors the admission of evidence, federal courts routinely find that the pro­bative value of other-acts evidence is not “substantially outweighed” by the risk of prejudice to a criminal defendant. 8 8 See infra notes 35–37 and accompanying text. ... Close As one commentator has sug­gested, “the character rule is steadily losing ground and is per­haps on its way to disappearing” as a result of this cavalier approach to prior bad-acts evidence. 9 9 Paul S. Milich, The Degrading Character Rule in American Criminal Trials, 47 Ga. L. Rev. 775, 777 (2013). ... Close Scholars have long lamented the ease with which the gov­ernment is permitted to sway a jury by parading a criminal defendant’s past misdeeds before it. 10 10 See Edward J. Imwinkelried, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575, 578 (1990) (noting how courts have expanded the admissibility of uncharged misconduct to the point of substantially undermining the character-evidence prohibition); David P. Leonard, In Defense of the Character Evidence Prohibition: Foundations of the Rule Against Trial by Character, 73 Ind. L.J. 1161, 1164 (1998) (arguing that expanding admissibility of other-acts evidence under Rule 404(b) is inconsistent with the moral foundations for the rule); Milich, supra note 9, at 776 (“The American rule barring character evidence in criminal cases is degrading in every sense of the word.”); Andrew J. Morris, Federal Rule of Evidence 404(b): The Fictitious Ban on Character Reasoning from Other Crime Evidence, 17 Rev. Litig. 181, 184 (1998) (“[C]ourts routinely admit bad acts evidence precisely for its relevance to defendant propensity.”); Thomas J. Reed, Admitting the Accused’s Criminal History: The Trouble with Rule 404(b), 78 Temp. L. Rev. 201, 214 (2005) (“Typically, the courts use . . . Rule 404(b) as a window to permit bad character evidence to be proved against the accused.”); David A. Sonenshein, The Misuse of Rule 404(b) on the Issue of Intent in the Federal Courts, 45 Creighton L. Rev. 215, 216–17 (2011) (arguing that admitting other-acts evidence as pro­bative of intent is inherently problematic). ... Close Proof of a criminal defendant’s past crimes has a dramatic effect on a jury, almost guaranteeing conviction. 11 11 See Milich, supra note 9, at 780 (“Once the jury learns that the defendant has a criminal past, the odds of conviction skyrocket.”); see also Jeffrey Bellin, Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis L. Rev. 289, 295 & n.18 (2008) (citing empirical evi­dence indicating the significant negative effect on a jury of prior convictions admitted to impeach a criminal defendant). But see Larry Laudan & Ronald J. Allen, The Devastating Impact of Prior Crimes Evidence and Other Myths of the Criminal Justice Process, 101 J. Crim. L. & Criminology 493, 507–08, 522–26 (2011) (arguing conviction rates are unaf­fected by admission of bad-acts evidence and advocating for liberal admissibility of such evidence). ... Close

Recently, the Seventh, Third, and Fourth Circuits have endeavored to restore the prohibition on bad-character evidence by requiring trial courts to take a harder look at evidence of a defendant’s other crimes, wrongs, or acts. Specifically, these circuits demand that trial courts ar­ticulate the chain of reasoning supporting the relevance of other-acts evidence and forbid any use of such evidence that proceeds through a propensity line of reasoning. 12 12 See, e.g., United States v. Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc) (explaining that other-acts evidence should not be admitted in order to show the defen­dant’s propensity to commit crimes). ... Close In addition, these courts have emphasized the importance of assessing the genuine disputes involved in a criminal trial, carefully restricting other-acts evidence in cases in which the de­fendant has not actively contested the element to which the other act is relevant. 13 13 See, e.g., United States v. Caldwell, 760 F.3d 267, 283–84 (3d Cir. 2014) (“[T]he probative value of prior act evidence is diminished where the defendant does not contest the fact for which supporting evidence has been offered.”). ... Close Finally, some courts have sought to eliminate the ill-defined “inextricably inter­twined” doctrine, which allows other-acts evidence to be admitted without scrutiny under Rule 404(b), on the theory that the evidence is vaguely connected to the charged offense. 14 14 See, e.g., United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010) (demonstrating that the inextricably intertwined test is “vague, overbroad, and prone to abuse” and ulti­mately rejecting it as the primary standard for intrinsic evidence). ... Close

As other circuits continue to admit other-acts evidence liberally by viewing Rule 404(b) as a rule of inclusion, the Judicial Conference Advisory Committee on Evidence Rules has begun to consider whether an amendment to Rule 404(b) could resolve the appar­ent split among the circuit courts and restore the intended balance to the admission of other-acts evidence. 15 15 See Advisory Comm. on Rules of Evidence, Fall 2016 Meeting Agenda 69–71 (Oct. 21, 2016) [hereinafter Fall 2016 Advisory Comm. Meeting Agenda], www.uscourts.gov/
sites/default/files/2016-10-evidence-agenda-book.pdf [http://perma.cc/TCM9-5E7D]. Of course, admitting evidence that a criminal defendant has committed a prior act of sexual assault or child molestation in a criminal case accusing the defendant of similar acts poses significant risks to the criminal defendant as well. See generally Jeffrey Waller, Comment, Federal Rules of Evidence 413–415: “Laws Are Like Medicine; They Generally Cure an Evil by a Lesser . . . Evil,” 30 Tex. Tech. L. Rev. 1503 (1999) (describing the debate surrounding the enactment of Rules 413 through 415 and the risks to criminal defendants in particular). The Advisory Committee was unsuccessful in limiting the liberal admissi­bility of such evidence through Federal Rules of Evidence 413 through 415 when they were proposed by Congress. See Judicial Conference of the United States, Report of the Judicial Conference on the Admission of Character Evidence in Certain Sexual Misconduct Cases, 159 F.R.D. 51, 52 (1995) (“After careful study, the Judicial Conference urges Congress to reconsider its decision on the policy questions underlying the new rules.”). The recent trend in federal cases to restrict access to other-acts evidence admitted through Rule 404(b) in criminal cases is consistent with the existing language of Rule 404(b) and with the intent in enacting the Rule. See Fed. R. Evid. 404(b)(1) (providing that evidence of a crime, wrong, or other act “to prove a person’s character” to show that the person acted in accordance with that character is “[p]rohibited”). While perceived problems with the admissibility of other-acts evidence in sex offense cases are unlikely to be addressed by rulemakers due to the congressional mandate in that arena, a modi­fication to Rule 404(b) could capture the trend in the federal circuit courts and restore that Rule to its intended exclusionary purpose. Given the frequency with which other-acts evidence is admitted through Rule 404(b) in federal criminal cases, there is some urgency to define the proper application of that Rule. Compare Imwinkelried et al., Courtroom Criminal Evidence, supra note 3 (discussing the frequent use of Rule 404(b) evidence) with Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 Cornell L. Rev. 1487, 1490 (2005) (noting “that rape and child abuse are usually prosecuted as state crimes” and “almost all of the nonmilitary federal cases inter­preting . . . Rules [413 and 414] arise in Indian Country”). ... Close The well-reasoned cases in the Third, Fourth, and Seventh Circuits provide many possibilities for amendment—and a number of drafting alternatives for the Advisory Committee to con­sider. Rule 404(b) could be revised to expressly forbid the admission of any other act that depends upon a propensity inference for its probative value. Alternatively, or in addition to such a propensity ban, Rule 404(b) could be amended to require “active contest” by a defendant of a specific element of a charged offense before other-acts evidence is admitted to prove it. In addition, an amendment could seek to eliminate or curtail widespread use of the vague “inextricably intertwined” doctrine and to channel more of a criminal defendant’s past misdeeds through the ap­pro­priate Rule 404(b) analysis.

Although many of these possibilities sound appealing, they may be difficult to capture in rule text and may prove problematic in practice. Adding new terminology like “propensity inference” and “active con­test,” foreign to the Federal Rules of Evidence, could invite costly and time-in­tensive litigation over the proper meaning and application of such standards. Even more importantly, however, amendments that add hard-and-fast, mechanical requirements to Rule 404(b) would be incompatible with the flexible, case-by-case approach that has been the foundation for Rule 404(b) analysis. 16 16 See Fed. R. Evid. 404(b) advisory committee’s note to 1972 proposed rule (noting that “[n]o mechanical solution is offered” to the question of other-acts evidence and that the determination must be made on a case-by-case balancing of the evidence’s probative value and prejudicial effect). ... Close

Another potential amendment to Rule 404(b) that has not been sug­gested by recent federal precedent could provide an optimal and elegant solution that would permit the admission of other-acts evidence in appro­priate circumstances but preserve the prohibition on propensity evidence and bad-character reasoning. Rather than leaving the admission of other-acts evidence to the Rule 403 balancing test, which favors admissibility, Rule 404(b)(2) could be amended to require a more protective balancing test when the government offers other-acts evidence against a criminal defend­ant. An amendment could demand that the probative value of a criminal defendant’s other crimes, wrongs, or acts offered for a proper nonchar­acter purpose, such as intent, outweigh its prejudicial effect to that de­fendant. This balancing would favor exclusion by dictating rejection of other-acts evidence in cases when its probative value fails to eclipse the unfair prejudice suffered by a criminal defendant whose past misdeeds are revealed to the jury. This would eliminate the current characterization of Rule 404(b) in many federal circuit courts as a rule of “inclusion.” This shift in favor of criminal defendants would encourage more careful scru­tiny of other-acts evidence to ensure that it responds to a live dispute at trial and to guard against propensity inferences.

A test that requires probative value to overcome unfair prejudice would also necessitate a more specific and realistic assessment of the prej­udice likely to result from admission of a particular defendant’s past misdeeds than federal courts traditionally undertake. Crucially, a more protective balancing test offers a flexible solution that will not tie the hands of district court judges when other-acts evidence is needed to re­spond to a defense. Unlike terms such as “propensity inference” and “active contest,” this protective balancing test is very familiar to litigants and judges who already apply it in the context of evaluating admissibility of a criminal defendant’s felony convictions for impeachment purposes under Rule 609(a)(1). 17 17 See Fed. R. Evid. 609(a)(1)(B) (providing for exclusion of prior convictions offered to impeach the criminal defendant’s character for truthfulness unless the prior convictions’ probative value outweighs their prejudicial effect). ... Close A more protective balancing test for criminal de­fendants facing other-acts evidence, therefore, has much to recommend, and is easily added to the text of Rule 404(b).

Part I of this Article will set out the structure of Rule 404(b) and offer a brief history of the Rule. Part II will describe the traditional approach to other-acts evidence under Rule 404(b), which liberally ad­mits prior bad acts of criminal defendants. Part III will showcase recent efforts in some circuit courts to restrict the traditional permissive ap­proach to other-acts evi­dence and to impose more rigorous barriers to admissibility. Part IV will set forth and discuss drafting alternatives the Advisory Committee is cur­rently considering, which would codify the recent common law develop­ments under Rule 404(b)—but which could also raise problems of interpretation and application. Part V will propose the addition of a more protective balancing test to Federal Rule 404(b) that would apply when other-acts evidence is offered against a criminal defendant. Part V will fur­ther illustrate how a more protective balancing test would resolve many of the current shortcomings in the contem­porary application of Rule 404(b), while still paving the way for ad­mission of important government evidence.

I. History and Structure of Rule 404

Fundamental to the adversary system is the principle that a person should be convicted for what she has done and not for who she is. 18 18 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:21, Westlaw (database updated through June 2017) (“[A] defendant should not be convicted because he is an unsavory person, nor because of past misdeeds, but only because of his guilt of the particular crime charged.”). ... Close Prior to the Federal Rules of Evidence, American courts prohibited evidence of a person’s character to prove her conduct on a relevant occasion. 19 19 See Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 907 (stating that, at common law, most courts subscribed to an “exclusionary conception” of the uncharged misconduct doctrine); see also Demetria D. Frank, The Proof Is in the Prejudice: Implicit Racial Bias, Uncharged Act Evidence & the Colorblind Courtroom, 32 Harv. J. Racial & Ethnic Just. 1, 33 (2016) (discussing the varied and inconsistent history of uncharged misconduct evidence and suggesting that Rule 404(b) reflects a combination of an American common law trend of exclusion and a liberal English approach); Milich, supra note 9, at 777 (“The traditional common law rule prohibited use of the accused’s bad character or prior, unrelated misconduct to suggest that he or she therefore was more likely guilty of the crime charged.”). ... Close The rule with respect to other-acts evidence was truly one designed to ex­clude character evidence, forbidding evidence of uncharged crimes, wrongs, or acts unless offered for a proper noncharacter purpose. 20 20 See Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 907 (laying out exceptions to the general presumption against admitting evidence of other conduct); see also Michelson v. United States, 335 U.S. 469, 475 (1948) (“The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.”). ... Close

In keeping with this tradition, Federal Rule of Evidence 404(a) ex­cludes evidence of “a person’s character or character trait” to prove conduct consistent with that character on a specific occasion. 21 21 Fed. R. Evid. 404(a). ... Close This means, for example, that a prosecutor cannot seek to prove that a de­fend­ant committed a particular assault by showing that the defendant is gener­ally a “violent” person. Rule 404(b)(1) ensures that the prohibition on character evidence extends beyond generalized character traits to a per­son’s other crimes, wrongs, or acts, banning evidence of past mis­deeds as proof of charged misconduct. 22 22 Fed. R. Evid. 404(b)(1). ... Close Thus, a prosecutor cannot seek to prove that a defendant committed a charged assault by offering evidence that the defendant has committed similar assaults on previous occasions.

Rule 404(b)(2) recognizes, however, that uncharged acts can have an important bearing on issues in a case beyond simply demonstrating an individual’s propensity to behave in a certain way. Rule 404(b)(2) thus provides that evidence of other crimes, wrongs, or acts may be admissible for other purposes, “such as proving motive, opportunity, intent, prep­ara­tion, plan, knowledge, identity, absence of mistake, or lack of accident.” 23 23 Fed. R. Evid. 404(b)(2). ... Close As noted by the Supreme Court, “Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, es­pecially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.” 24 24 Huddleston v. United States, 485 U.S. 681, 685 (1988). ... Close Another classic example of admissible other-acts evidence would be a criminal defend­ant’s previous crime spree to demonstrate his motivation for shooting at a police officer pursuing him for those of­fenses. 25 25 Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 904 (noting that evidence that a defendant stole a pistol used in a murder a month before the murder could be offered in the murder prosecution under Rule 404(b)). ... Close Rather than suggesting some criminal propensity that would make a violent act generally more likely, the prior crime spree would demonstrate the history between the officer and the defendant, and the defendant’s reasons for the shooting.

In Huddleston v. United States, the Supreme Court outlined the proper methodology for determining the admissibility of evidence of a criminal defendant’s other crimes, wrongs, or acts. 26 26 485 U.S. at 691–92. ... Close The Court set out a four-part test, which has been utilized with some linguistic modifications across the federal circuit courts. 27 27 See Mueller & Kirkpatrick, supra note 18, § 4:29 (noting some federal circuit courts “more-or-less rephrase Huddleston without departing from it”). ... Close First, the court must determine whether the prof­fered other-acts evidence has a “proper purpose” other than demonstrat­ing a person’s propensity to behave in a certain man­ner. 28 28 Huddleston, 485 U.S. at 691. ... Close Because Rule 404(b)(2) provides for admissibility for purposes “such as” those listed in the Rule, a proper purpose may be one of those enumerated in Rule 404(b)(2) or any other proper, noncharacter pur­pose identified by the proponent or the court. 29 29 Fed. R. Evid. 404(b)(2). ... Close Second, the court must determine the relevance of the other act to such a proper pur­pose. 30 30 Huddleston, 485 U.S. at 691. ... Close This step involves assessing the chain of inferences that leads from the other act to its purpose in proving motive or opportunity, for example, to ensure that the evidence has some tendency beyond simple propensity to demonstrate that purpose. Third, the trial court should perform a traditional Rule 403 balancing to deter­mine that the probative value of the other crime, wrong, or act for the proffered proper purpose is not substantially outweighed by the risk of unfair prejudice, namely a chain of bad-character reasoning. 31 31 Id. ... Close Finally, if the court determines that the other-acts evidence can be admitted after Rule 403 balancing, the court should offer the opponent of the evidence an appropriate limiting instruction restricting the other-acts evidence to its proper purpose. 32 32 Id. at 691–92. ... Close The Supreme Court also held that any dispute over whether a defendant actually committed the other act is a Rule 104(b) issue of conditional relevance: That condition is met if a reasonable jury could find by a pre­ponderance of the evidence that the defendant com­mitted the other act. 33 33 Id. at 690. ... Close

II. The Traditional Approach to Rule 404(b) in Federal Court

Notwithstanding the seemingly rigorous four-step analysis of other-acts evidence articulated by the Supreme Court, federal courts have grown increasingly permissive in allowing the admission of other-acts evidence. 34 34 See Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 907 (noting liberal use of “plan” purpose by courts to admit similar acts that are merely bad-character evidence); Mueller & Kirkpatrick, supra note 18, § 4:28 (“[I]t is lamentably com­mon to see recitations of laundry lists of permissive uses, with little analysis or attention to the particulars.”); Frank, supra note 19, at 3 (describing the “over-admission” of un­charged act evidence through Rule 404(b)). ... Close As the following section sets out, federal courts routinely admit the previ­ous uncharged misdeeds of criminal defendants, threat­ening to under­mine the bedrock ban on character evidence.

Typically, a court presented with a Rule 404(b) objection takes three quick steps: 1) emphasize that Rule 404(b) is a rule of “inclusion” and not exclusion; 35 35 Mueller & Kirkpatrick, supra note 18, § 4:28 (noting the tendency among courts to treat Rule 404(b) as one of “inclusion” and emphasizing the benefits of the contrary view that the Rule is one of “exclusion” and that “courts should be careful before admit­ting such evidence”); see also United States v. Lawson, 410 F.3d 735, 740 (D.C. Cir. 2005) (treating Rule 404(b) as a rule of inclusion); United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003) (same); United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (same). ... Close 2) find that the proffered bad act is probative of one (and often more than one) noncharacter purpose, regardless of whether the defendant actually is contesting that purpose; and 3) declare sum­marily that the probative value for the proper purpose is not “sub­stantially out­weighed” by unspecified prejudicial effect to the defendant. 36 36 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual § 404.03, LexisNexis (database updated 2017) (summarizing numerous circuit court decisions that treat Rule 404(b) as a “rule of inclusion” and find bad acts admissible, even if the purported proper purpose is not actively contested and that pur­pose depends upon a character inference). ... Close

One of literally hundreds of examples of this traditional, “knee-jerk” approach to Rule 404(b) is found in United States v. Geddes. 37 37 844 F.3d 983, 989–91 (8th Cir. 2017). ... Close In Geddes, the defendant was charged with aiding and abetting sex trafficking by force, fraud, or coercion. 38 38 Id. at 987. ... Close At trial, the defense moved to exclude testi­mony that he had physically assaulted and threatened to kill a former girlfriend in an unrelated incident because of a text message that he found on her phone. 39 39 Id. at 989. ... Close The trial court overruled the objection and allowed the testimony. 40 40 Id. at 987–88. ... Close Following his conviction, Geddes appealed the admission of the testimony regarding the previous assault and threat, claiming Rule 404(b) error. 41 41 Id. at 988. ... Close

The Eighth Circuit began its analysis by stating that there is no error under Rule 404(b) “unless the evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” 42 42 Id. at 989 (internal quotation marks omitted) (quoting United States v. Williams, 796 F.3d 951, 958 (8th Cir. 2015)). ... Close The court continued by explaining that Rule 404(b) is a rule “of inclusion rather than exclusion and admits evidence of other crimes or acts relevant to any issue in the trial, unless it tends to prove only criminal disposition.” 43 43 Id. (emphasis added) (internal quotation marks omitted) (quoting United States v. Oaks, 606 F.3d 530, 538 (8th Cir. 2010)). ... Close The court found that the defendant’s previous threat and assault of a former girlfriend were probative of “knowledge” and “intent,” both of which were relevant to the charged crime because the prosecution was required to prove both knowing trans­portation in in­terstate commerce and intent to coerce under the relevant statute. 44 44 Id. at 990; see also Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 907 (noting that “intent” is the most commonly utilized purpose for admitting other-acts evidence). ... Close Those elements were at issue, according to the court, simply because the defend­ant pled not guilty to the charges of aiding and abetting sex trafficking by force, fraud, or coercion. Finally, the court concluded that the risk of prej­udice to the defendant did not substan­tially outweigh the value of proving knowledge and intent, par­ticularly because a limiting instruction had been given to the jury. 45 45 Geddes, 844 F.3d at 990–91. ... Close

The Rule 404(b) analysis in Geddes is inconsistent with the original intent of Rule 404(b) for a number of reasons. First, the defendant’s threat to kill his former girlfriend is relevant to prove his “intent” to coerce the alleged victim four years later only if one proceeds through a propensity chain of inferences. Reasoning that, “if the defendant had an intent to hurt his girlfriend, it is more likely he had an intent to coerce the alleged victim,” is just another way of saying that the defendant’s threat to his girlfriend shows a propensity to threaten women. Thus, the bad act is not truly offered for a proper, nonpropensity purpose at all despite the court’s lip-service to “knowledge” and “intent.” Second, the defendant was not actively contesting his intent to aid and abet sex trafficking by force, fraud, or coercion. Instead, he argued that he never made any threat at all. If simply pleading not guilty is enough to put intent into issue for purposes of Rule 404(b), then virtually any act somewhat similar to the charged act will be admissible in every criminal case that proceeds to trial. Third, the court’s statement that the gov­ernment overcomes a Rule 404(b) objection by coming up with any nonpropensity purpose for which evidence is at all relevant ignores the work that Rule 403 is supposed to do when the pro­bative value for the nonpropensity purpose is weak. Finally, the Geddes court’s character­ization of Rule 404(b) as a “rule of inclusion” 46 46 See id. at 989. ... Close mischar­acterizes the rule and ignores its inherently exclusionary purpose, which demands the rejection of bad-acts evidence offered to prove propensity.

The thin analysis in Geddes is regrettably common. A similar cavalier approach to other-acts evidence can be found in the tale of two Smiths. Defendant Erick Smith was charged with conspiracy to distribute and con­spiracy to possess with intent to distribute cocaine arising out of a drug operation in Pensacola, Florida. 47 47 United States v. Smith, 741 F.3d 1211, 1214–15 (11th Cir. 2013). ... Close At trial, the defendant objected to the government’s admission of his two prior drug convictions. 48 48 Id. at 1225. ... Close Both were for mere possession of cocaine (and not for distribution or pos­session with intent to distribute cocaine) and occurred six and ten years prior to the conduct charged in the indictment. 49 49 Id. ... Close Smith argued that Rule 404(b) pro­hibited admission of his prior convictions because the con­victions were not probative of any material issue in his case “other than character.” 50 50 Id. ... Close After the trial court admitted the evidence and he was con­victed, Smith appealed. 51 51 Id. at 1213–14. ... Close

The Eleventh Circuit began its analysis by emphasizing that “Rule 404(b) is a rule of inclusion” and that Rule “404(b) evidence . . . should not lightly be excluded when it is central to the prosecution’s case.” 52 52 Id. at 1225 (internal quotation marks omitted) (quoting United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003)). ... Close The court continued by highlighting circuit precedent providing that a de­fendant’s not guilty plea in a drug conspiracy case “makes intent a material issue and opens the door to admission of prior drug-related offenses.” 53 53 Id. (quoting United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997)). ... Close The court explained that even old convictions for mere pos­session of drugs could be probative of a defendant’s later “intent to distribute” when the same drug is involved in both the charged and un­charged acts. 54 54 Id. at 1226. ... Close Thus, the court upheld the admission of the defendant’s previous possession convic­tions without explaining how they demon­strated his intent to distribute apart from showing his character. 55 55 See id. ... Close

A different Smith, Mario Ronrico Smith, was charged with possession with intent to distribute cocaine, using and carrying a firearm during a drug trafficking crime, and being a felon in possession of a firearm after he was stopped by a law enforcement officer with two kilo­grams of cocaine, $6,000 in cash, and a Glock .40 caliber handgun in his car. 56 56 United States v. Smith, 789 F.3d 923, 927 (8th Cir. 2015). ... Close Because de­fendant Smith fled the scene of the traffic stop and was apprehended eighteen months later, his principal defense at trial related to his identity: He claimed that he was not the driver of the stopped vehicle carrying the contraband. 57 57 Id. at 927–28. ... Close At trial the government ad­mitted, over Smith’s objection, his eight-year-old prior conviction for possession with intent to distribute cocaine on the theory that it “fit a pattern of intent or knowledge under Rule 404(b).” 58 58 Id. at 927. ... Close

On appeal, Smith argued that his prior conviction was not relevant to prove “intent” or “knowledge” when “the sole dispute in th[e] case” was whether “Smith was the driver.” 59 59 Id. at 930. ... Close In rejecting this argument and af­firming Smith’s conviction, the court characterized Smith’s defense to the current charges as a “general-denial defense,” stating that the Eighth Circuit has “long recognized that a general-denial defense places ‘intent or state of mind into question and allow[s] the admission of prior crim­inal convic­tions to prove both knowledge and intent.’” 60 60 Id. (quoting United States v. Foster, 344 F.3d 799, 801 (8th Cir. 2003)). ... Close The court found that, although the prior conviction was eight years old at the time of trial, “it was not so remote in time as to be inadmissible.” 61 61 Id. (internal quotation marks omitted) (quoting United States v. Trogdon, 575 F.3d 762, 766 (8th Cir. 2009)). ... Close Thus, the court quickly found evidence of defendant Smith’s prior drug offense ad­missible under Rule 404(b), although his defense did not dispute his knowledge of drugs or intent to distribute them, and despite the fact that the prior offense demonstrated intent only by way of an inference about Smith’s propensity to sell drugs. 62 62 Id. Several cases have held similarly. For instance, in United States v. LaFontaine, the court affirmed the defendant’s conviction for making a threat in a 2015 call to the Department of Justice, stating that Rule 404(b) is “one of inclusion, such that evidence offered for permissible purposes is presumed admissible absent a contrary determination.” 847 F.3d 974, 981–82 (8th Cir. 2017) (internal quotation marks omitted) (quoting United States v. Contreras, 816 F.3d 502, 511 (8th Cir. 2016)). Further, the court held that the trial judge did not commit an abuse of discretion when he admitted a 2013 call by the defendant to a federal court employee, because he concluded that the earlier call was rel­evant to “intent,” which was the key issue in the case. Id; see also United States v. Thomas, 847 F.3d 193, 207–08 (5th Cir. 2017) (affirming the defendant’s convictions for theft and finding no plain error in the admission of evidence of defendant’s actions prior to the crime charged when it “lessen[ed] the likelihood that [Thomas] committed the charged offense with innocent intent” (alteration in original) (internal quotation marks omitted) (quoting United States v. Smith, 804 F.3d 724, 736 (5th Cir. 2015))); United States v. Khan, 771 F.3d 367, 377–78 (7th Cir. 2014) (finding that the court did not abuse its discretion in admitting evidence of prior uncharged acts since “the risk of unfair prejudice did not substantially outweigh the [evidence’s] probative value”); United States v. Roux, 715 F.3d 1019, 1026–27 (7th Cir. 2013) (finding other-acts evidence admissible upon considering its “relative probative value and prejudicial effect”); United States v. Douglas, 482 F.3d 591, 596–600 (D.C. Cir. 2007) (finding evidence of defendant’s prior arrest ad­missible since it went to “knowledge or intent” even if it “may also suggest criminal propensity”); United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005) (finding that the “probative value” of a prior conviction did not result in “disproportionate pre­judice”); United States v. Logan, 121 F.3d 1172, 1177–78 (8th Cir. 1997) (finding evidence of a prior act admissible to determine intent or motivation). ... Close

Another common technique employed by many federal courts in ad­mitting prior uncharged acts against a criminal defendant is to find those acts “inextricably intertwined” with the charged offense and, thus, im­mune from Rule 404(b) scrutiny altogether. 63 63 See, e.g., United States v. Ali, 799 F.3d 1008, 1026–27 (8th Cir. 2015) (holding that evidence that one defendant supported a terrorist group before it was designated as a terrorist organization was “intrinsic” to the crime charged because it explained how the fundraising began); United States v. Castleman, 795 F.3d 904, 915 (8th Cir. 2015) (char­acterizing, in a drug prosecution, evidence of death threats against witnesses, offered to prove consciousness of guilt, as “‘direct evidence of the crime charged’” and so “not sub­ject to a Rule 404(b) analysis” (quoting United States v. Zierke, 618 F.3d 755, 759 (8th Cir. 2010))); United States v. Ford, 784 F.3d 1386, 1394 (11th Cir. 2015) (holding that com­mon methods used by the defendant to commit fraud were “intrinsic” because they were similar to the charged offenses); United States v. Campbell, 764 F.3d 880, 887–88 (8th Cir. 2014) (relying upon the inextricably intertwined theory to uphold admission of other-acts evidence); United States v. Cancelliere, 69 F.3d 1116, 1124–25 (11th Cir. 1995) (same); United States v. Collins, 779 F.2d 1520, 1531–32 (11th Cir. 1986) (“[E]vidence of criminal activity other than the charged offense is not extrinsic act evidence . . . [if it] was inextricably intertwined with the evidence of the charged offense . . . .”); United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985) (holding that Rule 404(b) does not apply when the evidence concerns “context, motive, and set-up of the crime” and is “linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story”). ... Close Of course, Rule 404(b)(1) serves only to prohibit evidence of other crimes, wrongs, and acts and does not apply to the acts comprising the charged offense. 64 64 See Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, §§ 903–904 (suggesting a critical distinction between acts “intrinsic” to a charged offense because they are “part and parcel of the charged offense” and acts that are inextricably intertwined with the charged offense because “redacting the references to the uncharged crime would render the testimony . . . linguistically or psychologically incomprehensible”); Mueller & Kirkpatrick, supra note 18, § 4:29 (stating that “intrinsic acts” not covered by Rule 404(b) should include “acts of planning and preparation as well as execution and concealment of the charged crime”). ... Close The Commit­tee Note to the 1991 amendment to Rule 404(b) delineates be­tween acts that are covered by Rule 404(b) because they are “extrinsic” to the charged offense and those that are not governed by the rule be­cause they are “intrinsic” to the charged offense. 65 65 See Fed. R. Evid. 404(b) advisory committee’s note to 1991 amendment (adding a notice requirement and explaining that the notice requirement “does not extend to evidence of acts which are ‘intrinsic’ to the charged offense” (citing United States v. Williams, 900 F.2d 823 (5th Cir. 1990))); see also Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 903 (noting that Rule 404(b) applies only to “extrinsic acts” that do not constitute part of the charged offense and not to “intrinsic acts” that form part of the charged offense); Edward J. Imwinkelried, The Second Coming of Res Gestae: A Procedural Approach to Untangling the “Inextricably Intertwined” Theory for Admitting Evidence of an Accused’s Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 733–34 (2010) [hereinafter Imwinkelried, The Second Coming] (noting that Rule 404(b)’s 1991 amend­­ment does not apply to acts which are “intrinsic” to the charged offense). ... Close Although there is an obvious need for line drawing in applying Rule 404(b), many federal courts simply label uncharged offenses offered against criminal defen­dants as “inextricably intertwined” with the charged offense whenever they are in any way re­lated to the charged offense. By utilizing this vague and conclusory char­acterization, these courts sidestep the careful Rule 404(b) analysis dictated by the Supreme Court’s holding in Huddleston. 66 66 See supra notes 24–33 and accompanying text. ... Close

In United States v. Ford, for example, the defendant was charged with multiple counts of mail fraud, false claims, and identity theft based upon her filing of fraudulent tax returns in the names of specific homeless or disabled victims. 67 67 784 F.3d at 1390. ... Close At trial, Ford objected to government testimony from nine victims who were not included in the indictment and to testimony from an undercover reporter concerning the defendant’s uncharged video-recorded solicitation of the reporter. 68 68 Id. at 1394–95. ... Close Ford objected that all of this testimony amounted to evidence of uncharged misconduct that could not survive Rule 404(b) scrutiny. 69 69 Id. at 1391. ... Close Following the admission of all of this testi­mony by the trial court and Ford’s conviction, she appealed to the Eleventh Circuit.

The Eleventh Circuit explained that “Rule 404(b) is the wrong place to begin the analysis” of the defendant’s claim. 70 70 Id. at 1394. ... Close The court noted that a defendant’s uncharged conduct “is admissible as intrinsic evidence out­side the scope of Rule 404(b)” whenever the conduct is part of the “same scheme or series of transactions and uses the same modus operandi.” 71 71 Id. ... Close Thus, the evidence of nine uncharged fraudulent tax returns and iden­tity thefts, as well as evidence of a fraudulent solicitation of an undercover reporter, was admissible against the defendant without any Rule 404(b) analysis at all. Although the court may have upheld the admissibility of at least some of the uncharged fraudulent acts using a Rule 404(b) analysis, the court’s quick reference to “intrinsic” acts “inextricably intertwined” with the charged offense bypassed Rule 404(b) scrutiny altogether. 72 72 See Imwinkelried, The Second Coming, supra note 65, at 726 (“In many of the cases in which courts have invoked the [inextricably intertwined] doctrine, they could just as easily have relied on a recognized noncharacter theory, such as motive.”). ... Close

The analysis becomes even more confusing in courts that have more than one doctrine for determining whether the bad acts are “other” acts covered by Rule 404(b). 73 73 Advisory Comm. on Rules of Evidence, Spring 2017 Meeting Agenda 323 (Apr. 21, 2017) [hereinafter Spring 2017 Advisory Comm. Meeting Agenda], http://www.
uscourts.gov/sites/default/files/advisory_committee_on_rules_of_evidence_-_spring_
2017_meeting_materials.pdf [http://perma.cc/H24X-ELQB]. ... Close Consider United States v. Loftis, a wire fraud pros­ecution in which the government sought interlocutory relief after the trial judge ruled that evidence of frauds not specified in the indictment would be evaluated under Rule 404(b). 74 74 843 F.3d 1173, 1175–76 (9th Cir. 2016). ... Close The court held that Rule 404(b) did not apply for two reasons. First, the frauds not specified in the indictment were not “other” acts because the crime charged in­cluded not only the specific executions of the fraud scheme alleged in the indictment but also the “overall scheme.” 75 75 Id. at 1176. ... Close Second, the uncharged frauds were “inextricably intertwined” with the frauds specified in the indictment because “they [were] ‘part of the same transaction’ as the charged transactions.” 76 76 Id. at 1178. For another example, see United States v. Hilgeford, 7 F.3d 1340, 1345 (7th Cir. 1993) (“When deciding if the ‘other acts’ evidence was admissible without reference to Rule 404(b), we must determine whether such evidence was ‘intricately re­lated to the facts of the case’ at hand.” (quoting United States v. Hargrove, 929 F.2d 316, 320 (7th Cir. 1991))). Of course, Rule 403 will still apply to the evidence. See id. (“If we find the evidence is so related, the only limitation on the admission of such evidence is the balancing test required by Rule 403.”). However, it would be the rare case in which proof of an inextricably intertwined act could be considered so prejudicial as to justify exclusion under Rule 403. ... Close The court did not explain why it engaged with two separate doctrines to find this evidence to be outside Rule 404(b) given the similar reasoning sup­porting both. 77 77 Spring 2017 Advisory Comm. Meeting Agenda, supra note 73, at 323 (providing a summary of Loftis). In contrast, in some cases, courts need not engage at all in the “intrinsically intertwined” analysis because the bad-acts evidence is clearly part of the charged misconduct. See, e.g., United States v. Pace, 981 F.2d 1123, 1135 (10th Cir. 1992) (holding the evidence of codefendant’s distribution of methamphetamine on October 26, 1990, after Pace was arrested, to be admissible against Pace without regard to Rule 404(b) because the indictment charged Pace with conspiracy to attempt to manufacture and dis­tribute methamphetamine/amphetamine that ended “on or about October 26, 1990”), abrogated by United States v. Kupfer, 797 F.3d 1233 (10th Cir. 2015). ... Close

United States v. Hilgeford is another prime example of how courts uti­lize vague references to “inextricably intertwined” acts to sidestep the appropriate Rule 404(b) analysis. 78 78 7 F.3d at 1346. ... Close Hilgeford borrowed over “one million dollars from a bank and the Farmer’s Home Administration (FmHA) us­ing the two farms he owned as security for the debt.” 79 79 Id. at 1341. ... Close After financial problems “engulfed the defendant . . . the bank foreclosed on the mort­gage it held on one of his farms.” 80 80 Id. ... Close The bank then bought the farm at the foreclosure sale and evicted Hilgeford. 81 81 Id. ... Close The United States foreclosed on his other farm. 82 82 Id. ... Close Hilgeford retaliated by sending bills to employees of the bank and the FmHA and then taking deductions on his tax returns for the unpaid bills. 83 83 Id. at 1342. ... Close As a result, Hilgeford was charged with mail fraud and filing false tax returns. 84 84 Id. ... Close To prove that the defendant’s conduct was willful, the government offered evidence that Hilgeford had generated “a blizzard of complicated and groundless litigation, primarily involving his fruitless attempts to regain his two farms” in the years prior to filing the challenged tax returns. 85 85 Id. at 1344–45. ... Close Hilgeford objected at trial under Rule 404(b). 86 86 Id. at 1345. ... Close The court held that “evidence of defendant’s prior con­duct is ‘intricately related’ or ‘inextricably tied’ to the facts in this case” and that therefore Rule 404(b) was not applicable. 87 87 Id. at 1346. ... Close

Cases such as Hilgeford are even more suspect than fraud cases like Ford and Loftis, in which the bad acts occurred while the alleged scheme was ongoing. In Hilgeford, the bad acts did not occur within the time pe­riod covered by the indictment. 88 88 Id. at 1345–46 (discussing the defendant’s prior bad acts). ... Close The fact that the groundless litigation was probative of willfulness, an element needed to convict for the charge of filing false tax returns, does not immunize it against Rule 404(b) scru­tiny. All evidence offered by the prosecution in a criminal trial must be somehow probative of an element of the crime. 89 89 See id. at 1346 (holding that, despite Rule 404(b) not being applicable, the trial court must still determine whether the probative value of the evidence is outweighed by its prejudicial effect). ... Close The court’s statement that the groundless litigation concerning the farms was “intricately related” to the tax counts 90 90 Id. ... Close ignores the reality that the litigation consti­tuted uncharged bad acts by the defendant that needed to pass Rule 404(b) muster.

Ford, Loftis, and Hilgeford are hardly the only cases in which courts have been vague and conclusory in finding “inextricably intertwined” acts exempt from Rule 404(b). Courts exacerbate the problem by using differ­ent phrases to capture the concept, such as acts that are “intrinsic” to the crime charged; acts that form part of a “single criminal episode”; acts that are an “integral part” of the crime; and acts that “complete[] the story” or “explain[] the context” of the crime. 91 91 See United States v. Green, 617 F.3d 233, 237, 245–47 (3d Cir. 2010) (internal quotation marks omitted) (quoting various courts’ iterations of the test and noting that “[w]hether evidence qualifies as intrinsic in a particular case may well depend on which version of the test one employs”). ... Close One well-known commentator has summed up the “inextricably intertwined” doctrine with the following criticism:

“Inextricably intertwined” is the “modern de-Latinized” equivalent of res gestae, and it has been savaged by a similar critique. The standard has been described as “lack[ing] clarity” and “obscure,” because it does not embody a clear substantive principle. . . . The vacuous nature of the test’s wording gives courts license to employ sloppy analysis and allows them quickly to slip from a conclusory analysis to a desired conclusion. Simply stated, the indefinite phrasing of the doctrine is a virtual invitation for abuse. 92 92 Imwinkelried, The Second Coming, supra note 65, at 729–30 (alteration in original) (footnotes omitted). ... Close

In sum, a review of federal case law governing the admissibility of un­charged acts by criminal defendants reveals a disturbing pattern. Ap­pellate courts routinely start from a faulty premise that Rule 404(b) is a “rule of inclusion,” which presumes admissibility of other-acts evidence. In many cases, reliance on inferences about a defendant’s propensity to engage in certain conduct is necessary and clear in the government’s pur­ported purpose for offering evidence of uncharged misconduct. And this evidence is routinely admitted in cases in which the defendant has not disputed intent, knowledge, or motive beyond the simple act of pleading not guilty. Finally, many courts avoid even a cursory analysis of Rule 404(b) by characterizing the uncharged misconduct offered against a defendant as “inextricably intertwined” with the charged offense. All of these prac­tices add up to a permissive culture of admissibility of un­charged acts by criminal defendants that flies in the face of Rule 404(b)’s ban on other-acts evidence. 93 93 The appellate courts are not alone in their cursory treatment of other-acts evidence in criminal cases. District courts often give shallow treatment to Rule 404(b) analysis as well. See, e.g., United States v. Hayes, No. 2:16-CR-261 TS, 2016 WL 7046747, at *2 (D. Utah Dec. 2, 2016) (“Defendant’s prior use of methamphetamine may be used to show knowledge, plan, motive or intent to participate in the alleged crimes. Therefore, the evidence is probative of a material issue other than character and is admissible.”); United States v. Shayota, No. 15-CR-00264-LHK, 2016 WL 5791376, at *8 (N.D. Cal. Oct. 4, 2016) (“Defendants’ past history of working together on similar schemes indicates that they understood their roles as well as the objects of the conspiracy, and demonstrates how they gained knowledge, skills, and networks necessary to carry out the alleged 5-Hour ENERGY conspiracy.”). ... Close

III. The Recent Rule 404(b) Circuit Split: Reclaiming the Prohibition on Evidence of Other Crimes, Wrongs, or Acts

Notwithstanding the traditionally permissive approach to other-acts evidence in federal criminal cases, some federal circuits have recently made efforts to limit the admission of other-acts evidence and to restore the promised prohibition on such potentially devastating character evi­dence. The Seventh, 94 94 See infra notes 116–124, 155–161, 189–196 and accompanying text. ... Close Third, 95 95 See infra notes 101–109, 125–131, 140–152, 162–165, 171–188 and accompanying text. ... Close and Fourth Circuits 96 96 See infra notes 132–139 and accompanying text. ... Close have led a campaign to end the liberal admissibility of other-acts evidence in criminal cases by imposing limits on the prosecutorial use of such evidence. First, some fed­eral courts have articulated a more nuanced historical view of Rule 404(b) as a “rule of inclusion,” finding that this characterization does not signify the presumptive admissibility of other-acts evidence. 97 97 See infra section III.A. ... Close Second, these cir­cuit courts have articulated a total ban on the dreaded propensity inference, barring the admission of other-acts evidence when any link in the chain of inferences supporting the relevance of the other act depends on the defendant’s propensity to engage in certain con­duct. 98 98 See infra section III.B. ... Close Third, these circuit courts have analyzed the admissibility of other-acts evidence with an eye toward the defense advanced by the crim­inal defendant, demand­ing the defendant’s “active contest” of an element of an offense to which the other-acts evidence is relevant. 99 99 See infra section III.C. ... Close Finally, federal courts have taken a hard look at the vague “inextricably inter­twined” doctrine that has allowed other-acts evidence to escape Rule 404(b) scrutiny, either outlawing the doctrine or severely curtailing it.

A. Recasting Rule 404(b) as a Rule of Exclusion

Nothing is more common than to see a federal circuit court begin an analysis of the admissibility of other-acts evidence by stating that Rule 404(b) is a “rule of inclusion.” 100 100 See, e.g., United States v. Smith, 789 F.3d 923, 930 (8th Cir. 2015) (“Rule 404(b) is a rule of inclusion, and we will reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” (internal quotation marks omitted) (quoting United States v. Trogdon, 575 F.3d 762, 766 (8th Cir. 2009))); United States v. Smith, 741 F.3d 1211, 1225 (11th Cir. 2013) (“Rule 404(b) is a rule of inclusion, and ‘404(b) evidence, like other relevant evi­dence, should not lightly be excluded when it is central to the prosecution’s case.’” (quoting United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003))); United States v. Douglas, 482 F.3d 591, 596 (D.C. Cir. 2007) (“Indeed, ‘Rule 404(b) is a rule of inclusion rather than exclusion’ ‘prohibiting the admission of other crimes evidence “in but one cir­cumstance”—for the purpose of proving that a person’s actions conformed to his char­acter.’” (citation omitted) (first quoting United States v. Bowie, 232 F.3d 923, 929–30 (D.C. Cir. 2000); then quoting United States v. Crowder, 141 F.3d 1202, 1206 (D.C. Cir. 1998))). ... Close Right out of the gate, this characterization serves as a foundation for the permissive approach these courts have taken to other-acts evidence in federal criminal cases. Recently, other cir­cuits have articulated an arguably more historically accurate take on what it means for Rule 404(b) to be a “rule of inclusion.” These courts have stated that Rule 404(b) is “inclusive” only to the extent that it allows evi­dence of other crimes, wrongs, and acts to be admitted for relevant pro­per purposes beyond those spelled out in the non-exhaustive Rule 404(b)(2) list.

In United States v. Caldwell, the Third Circuit performed an in-depth analysis of the origins of the “rule of inclusion” characterization of Rule 404(b). 101 101 760 F.3d 267, 275 (3d Cir. 2014). ... Close The court found that all American courts throughout the nine­teenth and twentieth centuries agreed that evidence of other acts, relevant only to show a defendant’s “general propensity to commit the charged offense,” was inadmissible. 102 102 Id. ... Close Although there was a debate as to whether the common law rule was “exclusionary” or “inclusionary,” the debate “concerned whether the list of previously recognized non-pro­pensity pur­poses was exhaustive (or ‘exclusive’), or whether any non-pro­pensity purpose, even if not previously recognized, could support admission of the prior act evidence (the ‘inclusive’ approach).” 103 103 Id. (citing David P. Leonard, The New Wigmore: A Treatise on Evidence: Evidence of Other Misconduct and Similar Events § 4.3.2, at 224 (Richard D. Friedman ed., 2009) (“[T]he real question is . . . whether the courts actually confine admissibility to a set of enumerated purposes.”)). ... Close

The Caldwell court found that this debate over the list of available proper purposes for other-acts evidence was resolved in 1975 with the adoption of the Federal Rules of Evidence. 104 104 Id. ... Close The drafters of Rule 404(b) elected to introduce the list of proper purposes with the words “such as.” 105 105 Fed. R. Evid. 404(b)(2). ... Close The Third Circuit recognized that in so doing, “the drafters made clear that the list was not exclusive or otherwise limited to a strictly de­fined class.” 106 106 Caldwell, 760 F.3d at 276. ... Close The court explained that any reference to Rule 404(b) as a “rule of inclusion” merely refers to the drafter’s decision not to limit the poten­tially proper purposes for other-acts evidence. 107 107 Id. ... Close

Therefore, the Third Circuit clarified that characterizing Rule 404(b) as a “rule of inclusion” does not signify the presumptive admissi­bility of prior bad-acts evidence. Rather, the Third Circuit emphasized:

On this point, let us be clear: Rule 404(b) is a rule of general exclusion, and carries with it “no presumption of admissibility.” The Rule reflects the revered and longstanding policy that, under our system of justice, an accused is tried for what he did, not who he is. And in recognition that prior offense evidence is generally more prejudicial than probative, Rule 404(b) directs that evidence of prior bad acts be excluded—unless the propo­nent can demonstrate that the evidence is admissible for a non-propensity purpose. 108 108 Id. (citation omitted) (quoting 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:28, at 731 (4th ed. 2013)). ... Close

To the Caldwell court, therefore, Rule 404(b) as a rule of inclusion simply means that the list of proper purposes in the rule is not exclusive. 109 109 Other courts have recognized this same understanding of the Caldwell decision. See United States v. Hall, 858 F.3d 254, 276–77 (4th Cir. 2017) (emphasizing that the “characterization of Rule 404(b) as a rule of inclusion does not render prior convictions presumptively admissible” (citing Caldwell, 760 F.3d at 276)); United States v. Repak, 852 F.3d 230, 240–41 (3d Cir. 2017) (reiterating that Rule 404(b) is a rule of “exclusion”); Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 907 (noting that Federal Rule of Evidence 404(b) is “inclusionary” only because the list of proper purposes is illustrative and not exclusive). ... Close Cases like Caldwell have helped restrict the frequent admission of other-acts evidence by challenging the traditional inter­pretation of Rule 404(b) as a “rule of inclusion”—in Geddes and like cases—that treats Rule 404(b) as a rule providing for presumptive admis­sibility of uncharged miscon­duct. Instead, cases like Caldwell have placed the “rule of inclusion” lan­guage in its proper historical context and have restored the presumptive exclusion of prior uncharged acts by criminal defendants.

B. Prohibiting Propensity

Although Rule 404(b) is designed to prevent convictions based upon a criminal defendant’s propensity to behave in certain ways, many federal courts simply look to find probative value for the proper purpose cited by the prosecution without investigating whether that probative value relies on a propensity inference. Exemplary is United States v. Matthews, a case in which the defendant’s prior uncharged drug transaction was held pro­perly admitted to prove his intent to conspire to commit drug transac­tions. 110 110 431 F.3d 1296, 1311 (11th Cir. 2005). For other examples, see United States v. Logan, 121 F.3d 1172, 1179 (8th Cir. 1997) (holding that evidence of prior possession of drugs was probative of knowledge and intent to distribute, with no analysis of how the bad act was probative for those purposes independent of any propensity inference); United States v. Gadison, 8 F.3d 186, 192 (5th Cir. 1993) (holding that evidence of defendant’s prior conviction for cocaine possession was relevant to show intent). ... Close Specifically, the court held that even prior convictions for posses­sion of cocaine for personal use are relevant and admissible to prove a defendant’s intent to distribute cocaine on a separate occasion. 111 111 Matthews, 431 F.3d at 1311. ... Close Judge Tjoflat concurred specially, arguing that the court had failed to explain how the probative value of the prior drug activity actually proceeded through a nonpropensity inference:

It is difficult to argue that a person had an intention to do something on a particular occasion because he or she demon­strated that intention previously without implicitly suggesting that the person has a proclivity towards that intent . . . . If the inferential chain must run through the defendant’s character—and his or her predisposition towards a criminal intent—the ev­idence is squarely on the propensity side of the elusive line. Where, on the other hand, an inference can be drawn that says nothing about the defendant’s character—for example, based on the “improbability of coincidence”—the evidence is more appro­priately admissible for non-propensity purposes. 112 112 Id. at 1313 n.1 (Tjoflat, J., concurring in the judgment) (citation omitted). For a similar argument, see Daniel P. Ranaldo, Is Every Drug User a Drug Dealer? Federal Circuit Courts Are Split in Applying Fed. R. Evid. 404(b), 8 Fed. Cts. L. Rev. 147, 150–51 (2014) (noting the dispute in federal courts on whether prior acts of possession are probative of intent to distribute and characterizing the difference as whether or not the court is considering whether the probative value for intent proceeds through a propensity inference). ... Close

Most of the cases involving bad acts that proceed through a pro­pensity inference are, like Matthews, cases involving use of prior drug activity, with the prosecution arguing that the prior drug activity is of­fered for intent. 113 113 See, e.g., United States v. Smith, 741 F.3d 1211, 1216 (11th Cir. 2013). ... Close Many have argued that bad acts offered to prove “intent” cannot be read­ily separated from the propensity inference. 114 114 See, e.g., Sonenshein, supra note 10, at 218 (“What chain of reasoning can link the prior drug history . . . to the charged crime other than one that infers that the defendant has a drug-related propensity[?] . . . [E]arlier drug use, which is behavioral evidence, can be relevant only if we assume that the defendant’s behavior forms an unchanging pattern.” (quoting Morris, supra note 10, at 191–92)). ... Close But the problem of using propensity inferences for so-called proper pur­poses occurs for other pur­poses as well, such as identity and motive. 115 115 See United States v. Roux, 715 F.3d 1019, 1025 (7th Cir. 2013) (“[A]cts of abuse described by [minor sisters] CC and SH were probative of Roux’s motive to commit the charged child pornography offense . . . [because] ‘[p]rior instances of sexual misconduct with a child victim may establish a defendant’s sexual interest in children . . . .’” (quoting United States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006))). ... Close

In keeping with Judge Tjoflat’s Matthews concurrence, some federal circuit courts have recently held that in assessing probative value of other-acts evidence, the court must assure itself that the inferences to be derived from the act are independent of any propensity inference. The lead­ing example of the more careful approach is the Seventh Circuit’s decision in United States v. Gomez. 116 116 763 F.3d 845 (7th Cir. 2014) (en banc). ... Close In Gomez, the government had evi­dence that someone nicknamed “Guero” was a reseller of cocaine. 117 117 Id. at 850. ... Close Al­though the government claimed that Gomez was Guero, Gomez claimed that his brother-in-law was Guero. 118 118 Id. at 862. ... Close Over the defendant’s objection, the trial court admitted evi­dence of the defendant’s prior cocaine possession for the purpose of prov­ing the defendant’s “identity” as “Guero.” 119 119 Id. at 850. ... Close In reversing Gomez’s conviction, the circuit court stated:

[T]he district court should not just ask whether the proposed other-act evidence is relevant to a non-propensity purpose but how exactly the evidence is relevant to that purpose—or more spe­cifically, how the evidence is relevant without relying on a pro­pensity inference. Careful attention to these questions will help identify evidence that serves no permissible purpose. 120 120 Id. at 856 (second emphasis added). ... Close

The Gomez court held that the trial court improperly admitted evi­dence of the defendant’s cocaine possession because it suggested defen­dant’s identity as “Guero” only by way of a propensity inference. 121 121 Id. at 863. ... Close The court explained as follows:

Gomez’s mistaken-identity defense singled out another person—his brother-in-law and housemate Victor Reyes—as the “real” Guero. The government introduced the user quantity of cocaine found in Gomez’s bedroom for the purpose of showing that as between the two, it was more likely that Gomez was Guero. . . . [But] the evidence of the defendant’s history of drug dealing tended to prove his identity as a participant in the charged drug deal only by way of a forbidden propensity infer­ence: Once a drug dealer, always a drug dealer. 122 122 Id. at 862–63. ... Close

The court concluded that the government’s argument was not only “extraordinarily weak,” but also dependent on “pure propensity.” 123 123 Id. at 863. ... Close Ac­cordingly, the full Seventh Circuit Court of Appeals held that the dis­trict court should not have admitted evidence of Gomez’s cocaine posses­sion pursuant to Rule 404(b). 124 124 Id. But see United States v. Schmitt, 770 F.3d 524, 534 (7th Cir. 2014) (introducing evidence of drug-dealing as indicative of Schmitt’s motive to possess the firearm “provided a ‘propensity-free chain of reasoning’ for the evidence’s admission”) (quoting Gomez, 763 F.3d at 856)). ... Close

In United States v. Smith, the Third Circuit similarly held that prior misconduct must be excluded if the probative value for the expressed pur­pose rests on a propensity inference. 125 125 725 F.3d 340, 342 (3d Cir. 2013). ... Close In Smith, the defendant was charged with threatening a federal officer with a gun and possessing a fire­arm during a crime of violence. 126 126 Id. at 343. ... Close At trial, the government moved to admit evidence of the defendant’s prior drug dealing at the location of the charged offense, arguing that the evidence was probative of the defend­ant’s motive to commit the crime charged to protect his turf. 127 127 Id. ... Close Accepting this argument, the trial court admitted the evidence. 128 128 Id. at 342. ... Close

Following Smith’s conviction, the circuit court stated that the admis­sion of the prior bad-acts evidence “violates our long-standing require­ment that . . . under Rule 404(b), the proponent must set forth ‘a chain of logical inferences, no link of which can be the inference that because the defendant committed . . . offenses before, he therefore is more likely to have com­mitted this one.’” 129 129 Id. (quoting United States v. Sampson, 980 F.2d 883, 887 (3d Cir. 1992)). ... Close The court rejected the government’s ar­gument that the prior drug sale was admissible to show motive because “one must nec­essarily (a) assume something about Smith’s character based on the 2008 evidence (that he was a drug dealer) and (b) infer that Smith acted in conformity with that character in 2010 by dealing drugs and therefore had a motive to defend his turf.” 130 130 Id. at 346. ... Close Thus, the mere fact that the government articulated the noncharacter purpose of showing “motive” was not enough to admit the evidence for that purpose because the evidence was probative of motive only under the assumption that the defendant had a bad character. 131 131 For a similar example, see United States v. Steiner, in which the court reversed the defendant’s felon in possession of a firearm and ammunition conviction because the trial judge abused discretion in admitting evidence that an arrest warrant had been issued for the defendant’s failure to appear on an unrelated sexual assault charge as “background” evidence to show that the defendant was hiding out in the premises where the gun and ammunition were found. 847 F.3d 103, 106, 113 (3d Cir. 2017). There was no need for the “cavalier[]” use of background evidence in this case. Id. at 113. For another example, see United States v. Caldwell, 760 F.3d 267, 271 (3d Cir. 2014) (rejecting admission of prior gun possession to show that defendant knew he actually possessed a gun). ... Close

Most recently, the Fourth Circuit joined the chorus denouncing reli­ance on propensity inferences to support admission of Rule 404(b) evidence. In United States v. Hall, law enforcement officers searched a home in which the defendant resided and found six kilograms of mar­ijua­na, packaging materials, and three firearms inside a bedroom locked with a deadbolt. 132 132 858 F.3d 254, 262 (4th Cir. 2017). ... Close Following this search, the defendant was indicted for posses­sion with intent to distribute marijuana, possession of a firearm by a convicted felon, and possession of a firearm in furtherance of a drug traf­ficking crime. 133 133 Id. ... Close Hall’s defense at trial was that his cousin was respon­sible for the drugs and guns recovered from the residence and that he was not involved in the marijuana operation. 134 134 Id. at 263. ... Close Over the de­fendant’s ob­jection, the district court permitted the government to introduce evidence of the defendant’s prior marijuana convictions at the close of its case-in-chief—one for possession of marijuana and three for possession with intent to distribute marijuana—to prove the defendant’s knowledge of marijuana and his intent to distribute the marijuana found in the locked bedroom. 135 135 Id. ... Close

On appeal, the Fourth Circuit reversed Hall’s conviction, finding that the trial court abused its discretion in admitting Hall’s prior con­victions under Rule 404(b). 136 136 Id. at 264. ... Close The court found that the prior convic­tions were not linked to the present charges by similar circumstances or “tem­poral proximity.” 137 137 Id. at 260. ... Close Because the prior convictions helped to render the defendant’s involvement in the charged marijuana distribution “more plausible” through “precisely the criminal propensity inference Rule 404(b) is designed to forbid,” the court found that the prior convictions were not admissible to prove the defendant’s intent. 138 138 Id. at 275 (internal quotation marks omitted) (quoting United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992)). ... Close Over a vehement dissent, the court found that the government failed to meet its burden of explaining its proper purpose and of presenting a “propensity-free chain of inferences supporting” that purpose. 139 139 Id. at 277. ... Close

In United States v. Repak, the Third Circuit ultimately approved the admission of prior uncharged acts by the defendant as consistent with its strict ban on the propensity inference but chastised the district court for failing to articulate with careful precision the nonpropensity reasoning supporting the admissibility of the evidence. 140 140 852 F.3d 230, 242, 244 (3d Cir. 2017) (explaining that the district court’s analysis of the Rule 404(b) question is “inexact and fails to adequately link the other-acts evidence to a non-propensity purpose”). ... Close The defendant in Repak was a public official charged with various public corruption offenses based upon his solicitation of goods and services from vendors in ex­change for awarding them public contracts. 141 141 Id. at 237. ... Close The defendant’s principal defense was that he lacked the requisite mental state to influence the award of con­tracts based upon the provision of specific personal services charged in the indictment. 142 142 Id. at 240. ... Close The district court permitted the govern­ment to admit evi­dence of other uncharged acts of solicitation of per­sonal services by the defendant to contractors to show the defendant’s knowledge and corrupt intent. 143 143 Id. at 241. ... Close In so doing the district court provided paragraphs of analysis supporting the admission of the other-acts evidence, reasoning that “these [uncharged] business dealings and other solicitations will be used by the Government to establish Defendant’s knowledge as to the charges of ex­tortion under color of official right and his willful intent as to the charges of solicitation by a bribe.” 144 144 Id. (quoting United States v. Repak, No. 3:14-01, 2015 WL 4108309, at *5 (W.D. Pa. July 7, 2015)). ... Close The district court concluded that the “Government has presented a sufficient chain of inferences connecting these other acts to material facts in this case without implicating the evi­dentiary rules’ prohibition of using pro­pensity evidence.” 145 145 Id. at 242 (quoting Repak, 2015 WL 4108309, at *5). ... Close

On appeal of Repak’s conviction, the Third Circuit held that the un­charged acts of solicitation were admissible under a proper Rule 404(b) analysis, but found the district court’s analysis of the evidence “lacking.” 146 146 Id. ... Close The court noted that other-acts evidence must fit within a chain of infer­ences “no link of which is a forbidden propensity infer­ence” 147 147 Id. at 243 (quoting United States v. Davis, 276 F.3d 434, 442 (3d Cir. 2013)). ... Close and emphasized that this chain of reasoning must be articulated by the propo­nent and by the trial court with “careful precision.” 148 148 Id. (quoting United States v. Caldwell, 760 F.3d 267, 281 (3d Cir. 2014)). ... Close The court noted the importance of articulating how exactly a prior act demon­strates knowledge or intent, for example, to ensure that the evidence is “not susceptible to being used improperly by the jury.” 149 149 Id. ... Close Because the district court’s ruling failed to explain precisely how Repak’s uncharged solicitations tended to prove his intent with respect to the charged solicitations, the Third Circuit found that ruling to be “inexact” and an inadequate foundation for the admission of Rule 404(b) evidence. 150 150 Id. at 244. ... Close The court ultimately upheld the conviction and the admission of the uncharged acts of solicitation, how­ever, finding that the defendant’s course of conduct with the same vendors over a relatively circumscribed time period made it more likely that he did not “unwittingly” receive personal services free of charge without intend­ing to award contracts based on those services. 151 151 Id. at 246. ... Close Although the court up­held admission of the other-acts evidence, it emphasized that such evi­dence should be sub­jected to rigorous testing and admonished trial courts to perform careful, precise, and exact analysis of such evidence prior to its admission. 152 152 Id. at 248 (“The District Court’s application of Rule 403 to the Government’s other-acts evidence lacked the rigor this Court requires.”). ... Close

To summarize, federal courts are deeply divided on how to deter­mine the probative value of a criminal defendant’s prior bad act. Circuit courts sharply disagree on the need to assess whether the purported pro­per purpose for a prior bad act depends upon a propensity inference that reflects on the defendant’s character. Although federal courts have long upheld the admission of other-acts evidence with fleeting lip service to purported proper purposes, more recent circuit precedent demands a rigorous analysis that eschews any reliance on a defendant’s propensity to commit the charged offenses and places significant demands on the trial court in evaluating the admissibility of other-acts evidence.

C. Putting Defendants in the Driver’s Seat: Requiring “Active Contest”

The previous section demonstrates the difficulty and confusion in­volved in distinguishing between state of mind and propensity. This diffi­culty is especially salient when the government seeks to introduce bad-acts evidence to prove a defendant’s intent or knowledge. 153 153 Professor David Sonenshein’s review of the social science literature on the effect of prior experience on conduct suggests that “[b]ecause social science is essentially united in rejecting even the logical relevance of similar acts evidence on intent, Rule 404(b) should be amended to exclude intent from its list of permissible offers.” Sonenshein, supra note 10, at 275. Sonenshein recognizes, however, that “this seemingly radical propo­sal” might be “unacceptable to those who draft and approve amendments to the Rules.” Id. The Advisory Committee, consistent with Professor Sonenshein’s prediction, is not con­sidering any proposal that would completely bar bad-acts evidence when offered to prove intent. ... Close To mitigate prosecutorial abuse of bad-acts evidence offered to prove mental state, some courts prohibit the prosecution from admitting such evidence until it is apparent that the defendant is actively contesting the element of mental state. 154 154 An “active contest” requirement has usually been applied to evidence offered to prove a mental state, but logically it can be applied to other purposes such as identity and motive. See United States v. Hall, 858 F.3d 254, 263 (4th Cir. 2017) (noting the defendant was not contesting knowledge of the drugs when considering whether to admit the defen­dant’s prior drug convictions). ... Close In United States v. Gomez, the Seventh Circuit described this “active contest” approach as a component of the Rule 403 analysis con­ducted once a court has determined that there is a proper purpose for which the evidence is relevant without proceeding through a pro­pensity inference. 155 155 763 F.3d 845, 857 (7th Cir. 2014) (en banc) (“One important issue in Rule 403 balancing in this context is the extent to which the non-propensity factual proposition ac­tually is contested in the case.”). ... Close The “general guiding principle” recognized by the court is that “the de­gree to which the nonpropensity issue actually is disputed in the case will affect the probative value of the other-act evidence.” 156 156 Id. ... Close

The court recognized that trials involve varying “degrees of factual disagreement” that affect the application of this general principle. 157 157 Id. ... Close In some cases, a defendant might stipulate to a fact or element that other-acts evidence tends to prove. In this situation, the Seventh Circuit noted that other-acts evidence “may have little probative value” and may be ex­cluded. 158 158 Id. (citing Old Chief v. United States, 519 U.S. 172, 191–92 (1997) (holding that defense stipulation to felon status rendered evidence of defendant’s prior felony convic­tion inadmissible because the “risk of unfair prejudice did substantially outweigh the dis­counted probative value of the record of conviction”)); see also Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 908 n.77 (“[Old Chief] strengthens the argument that if the defense tenders a full, unconditional stipulation to a fact in issue, the tender greatly reduces the prosecution need to resort to uncharged misconduct evidence to establish the fact.” (citation omitted)). ... Close For trials involving general intent crimes, such as drug distribution offenses, the court noted that it has “adopted a rule that other-act evidence is not admissible to show intent unless the defendant puts intent ‘at issue’ beyond a general denial of guilt” because the fact-finder may readily infer the defendant’s intent from the act itself. 159 159 Gomez, 763 F.3d at 858 (citing United States v. Hicks, 635 F.3d 1063, 1070–71 (7th Cir. 2011); United States v. Shackleford, 738 F.2d 776, 781 (7th Cir. 1984)). ... Close The court explained that “intent is automatically at issue” in cases involving specific intent crimes and that active contest by the defendant is not necessarily required for admission of other-acts evidence to demonstrate intent in those circumstances. 160 160 Id. (internal quotation marks omitted) (quoting United States v. Conner, 583 F.3d 1011, 1022 (7th Cir. 2009)). ... Close The court cautioned, however, that other-acts evidence is not automatically admissible in specific intent cases because the evidence must always be relevant to intent in a permissible way. 161 161 See id.; see also United States v. Schmitt, 770 F.3d 524, 537 (7th Cir. 2014) (“By putting on evidence regarding who possessed the drugs in the house and disputing motive, Schmitt ‘opened the door’ to evidence that he was convicted of possessing the marijuana.”); Miller, 673 F.3d at 697–98 (“[E]vidence tending to prove intent becomes more probative, when the defense actually works to deny intent, joining the issue by contesting it . . . . [I]f merely denying guilt opens the door wide to prior convictions for the same crime, nothing is left of the Rule 404(b) prohibition.”). ... Close

Similarly, the Third Circuit requires that the defendant actively con­test his mental state before the prosecution may seek to admit bad-acts evidence to show “knowledge” or “intent.” 162 162 United States v. Caldwell, 760 F.3d 267, 283 (3d Cir. 2014). ... Close In Caldwell, the government alleged that the defendant, a convicted felon, had actual possession of a gun, which the defendant flatly denied. 163 163 Id. at 272, 278–79. ... Close Because the defendant did not dispute the mental element of the offense, but rather denied the con­duct entirely, the court held that “knowledge . . . was not a proper basis for ad­mitting evidence of Caldwell’s prior [weapons] convictions.” 164 164 Id. at 279, 281. ... Close The “active contest” requirement formed part of the court’s Rule 404(b) analysis, as follows:

Finally, we believe it necessary to address the District Court’s suggestion that Caldwell “put his knowledge at issue by claiming innocence.” It is unclear whether the District Court understood Caldwell to have “claimed innocence” by testifying at trial, or more broadly by pleading not guilty. Either way, we believe this line of reasoning is improper.

Situations may indeed arise where the content of a defendant’s trial testimony transforms a previously irrelevant 404(b) purpose into a material issue in a case. For example, if Caldwell had testified that he thought the object in his hand was something other than a gun, then it would immediately become critical for the prosecution to rebut his claim of mistake and to show his knowledge of the true nature of the thing possessed. We disagree, however, with the proposition that, merely by de­nying guilt of an offense with a knowledge-based mens rea, a defendant opens the door to admissibility of prior convictions of the same crime. . . . Accordingly, we reject the suggestion that “claiming innocence” is sufficient to place knowledge at issue for purposes of Rule 404(b). 165 165 Id. at 281. For additional examples, see United States v. Hall, 858 F.3d 254, 265 (4th Cir. 2017) (emphasizing that the defendant did not contest his knowledge of mar­ijuana or his intent to distribute it if he possessed it, but only contested his dominion and control over the contraband); United States v. Ford, 839 F.3d 94, 109 (1st Cir. 2016) (expressing concern about the trial court’s admission of evidence concerning defendant’s prior acts because the defendant’s decision not to contest intent “significantly reduced” the probative value of the testimony (citing United States v. Varoudakis, 233 F.3d 113, 121–24 (1st Cir. 2000))); United States v. Sampson, 385 F.3d 183, 193 (2d Cir. 2004) (holding evidence of uncharged drug activity was not admissible to prove intent because the defendant “unequivocally” relied on a defense that he did not do the act at all (quoting United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988))). But see United States v. Repak, 852 F.3d 230, 242–43 (3d Cir. 2017) (noting that uncharged acts of solicitation were admissible pursuant to Rule 404(b) because the defendant put his mental state at issue by “contending that he did not accept items from JRA contractors with the intention of influencing the awarding of JRA contracts”). ... Close

But many courts find that a defendant puts knowledge at issue sim­ply by entering a plea of not guilty because the government is then required to prove mental state beyond a reasonable doubt, regardless of whether the defendant actively contests that element at trial. 166 166 See, e.g., United States v. Smith, 789 F.3d 923, 930 (8th Cir. 2015) (holding, in a prosecution for cocaine trafficking, that a prior drug distribution conviction was properly admitted despite defendant’s general-denial defense); United States v. Smith, 741 F.3d 1211, 1225 (11th Cir. 2013) (“There is ‘[a]mple precedent . . . in this circuit finding that a not guilty plea in a drug conspiracy case . . . makes intent a material issue and opens the door to admission of prior drug-related offenses as highly probative . . . evidence of a defendant’s intent.’” (quoting United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997))); United States v. Olguin, 643 F.3d 384, 390 (5th Cir. 2011) (“A defendant’s not-guilty plea intuitively puts his intent and knowledge into issue.”); United States v. Hardy, 643 F.3d 143, 151 (6th Cir. 2011) (stating that prosecutors may use Rule 404(b) evidence to prove specific intent regardless of the defendant’s defense in cases in which the crime charged requires specific intent); United States v. Douglas, 482 F.3d 591, 597 (D.C. Cir. 2007) (stating that the prosecution is entitled to present Rule 404(b) evidence to establish the elements of intent and knowledge despite defendant’s offer to stipulate because the prosecution has to prove each element of the offense beyond a reasonable doubt); United States v. Jones, 982 F.2d 380, 382 (9th Cir. 1992) (same). ... Close Thus, there is a circuit split on the use of prior bad acts to prove the defen­dant’s mental state when the defendant does not actively contest mental state at trial. The more traditional approach to uncharged misconduct permits the gov­ernment to admit other-acts evidence to carry its high burden of proof notwithstanding the lack of an actual trial dispute over the element at issue, whereas more recent Rule 404(b) holdings reveal a definite trend toward an “active contest” requirement.

D. A Requiem for the “Inextricably Intertwined” Doctrine

Rule 404(b)(1) provides that “crimes, wrongs, or other acts” cannot be offered as proof of character to prove conduct on a particular occa­sion. 167 167 Fed. R. Evid. 404(b)(1). ... Close Therefore, the Rule 404(b) prohibition applies only to “other” crimes, wrongs, or acts and not to acts that are part of the charged offense. However, courts have struggled to determine which acts are “other acts” under the purview of Rule 404(b) as opposed to acts that are part of the offense charged. Most courts ask whether the bad-acts evi­dence the prosecution seeks to admit is “inextricably intertwined” with the crime charged. 168 168 See, e.g., United States v. Hilgeford, 7 F.3d 1340, 1345 (7th Cir. 1993) (“When deciding if the ‘other acts’ evidence was admissible without reference to Rule 404(b), we must determine whether such evidence was ‘intricately related to the facts of the case’ at hand.” (quoting United States v. Hargrove, 929 F.2d 316, 320 (7th Cir. 1991))). ... Close In cases in which the bad-acts evidence is “inextricably inter­twined” with the acts constituting the crime charged, Rule 404(b) is con­sidered inapplicable. Thus, the government need not articulate a “not-for-character” purpose when seeking to admit the evi­dence, and need not provide prior notice of the intent to use the evidence. 169 169 Of course, Rule 403 will still apply to the evidence. See id. (“If we find the evidence is so related, the only limitation on the admission of such evidence is the balanc­ing test required by Rule 403.”). ... Close

As examined above, federal courts have frequently applied the “in­ex­tricably intertwined” doctrine loosely with shallow analysis of the connec­tion between the proffered acts and the charged offense. 170 170 See supra notes 63–93 and accompanying text. ... Close Another recent trend in Rule 404(b) decisions reveals that some courts are limiting the scope of the “inextricably intertwined” doctrine. These federal opin­ions are demanding a much closer connection between prof­fered acts and a charged offense before exempting such acts from Rule 404(b) scrutiny.

Several circuits have gone so far as to question whether acts that are inextricably intertwined with the charged offense should be exempt from Rule 404(b) scrutiny. In United States v. Green, for example, the govern­ment sought to introduce evidence that the defendant, who was charged with drug offenses, threatened to kill the person who turned him over to authorities. 171 171 617 F.3d 233, 237 (3d Cir. 2010). ... Close The government argued that the evidence was “intrinsic ev­idence” relevant to the charged drug offenses. 172 172 Id. ... Close Without conducting a Rule 404(b) analysis, the trial judge granted the government’s motion to admit the evidence. 173 173 Id. ... Close Although the Third Circuit ultimately affirmed the trial judge’s ruling, the court rejected the “inextricably intertwined” doctrine as “vague, overbroad, and prone to abuse.” 174 174 Id. at 248. ... Close The court’s de­tailed opinion describes three problems with the “inextricably inter­twined” test. First, the test “creates confusion” because “no one knows what it means.” 175 175 Id. at 246. ... Close The confusion, the court notes, has resulted in different and non-interchangeable formulations of the test, and the question of “[w]hether evidence qualifies as intrinsic in a particular case may well depend on which version of the test one employs.” 176 176 Id. ... Close The court reasoned that “Green’s threat to kill [the person who turned him over to authorities] would qualify as intrinsic if the test is whether it ‘pertain[s] to the chain of events explaining the context’ of the crime,” but that it would not qualify as inextricably intertwined “if the test were whether that threat was ‘an integral part of the immediate context of the crime charged.’” 177 177 Id. (first quoting United States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004); then quoting United States v. Hall, 604 F.3d 539, 543 (8th Cir. 2010)). ... Close According to the Green court, another failing of the “inextricably intertwined test” is that it is “unnecessary.” 178 178 Id. at 247. ... Close The court noted that a com­mon justification for the admission of “intertwined acts is to allow a witness to testify freely and coherently” without “tiptoe[ing] around uncharged bad acts by the defendant,” a goal that can be met “without circumventing Rule 404(b).” 179 179 Id. ... Close This is necessarily so because “allowing the jury to under­stand the circumstances surrounding the charged crime—completing the story—is a proper, non-propensity purpose under Rule 404(b).” 180 180 Id. ... Close The third and final flaw in the “inextricably intertwined” doctrine, according to the court, is its suscep­tibility to being applied in a broad and conclusory fashion that allows “virtually any bad act” to be classified as “intrinsic.” 181 181 Id. at 248. ... Close Thus, the Green court explicitly held that the “inextricably intertwined” standard would no longer serve as the test for intrinsic evidence: “Like its predecessor res gestae, the inextricably intertwined test is vague, over­broad, and prone to abuse, and we cannot ignore the danger it poses to the vitality of Rule 404(b).” 182 182 Id. ... Close

Of course, line drawing is unavoidable in connection with Rule 404(b) because it applies only to “other” acts. Therefore, the Green court did not entirely “reject the concept of intrinsic evidence” and outlined “two narrow categories of evidence” it would consider “intrinsic” to the charged offense and exempt from Rule 404(b) analysis. 183 183 Id. ... Close The court found that acts that “directly prove” the charged offense could not be con­sidered “other acts” subject to a Rule 404(b) analysis. In addition, the court found that “uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the com­mission of the charged crime.” 184 184 Id. at 249 (internal quotation marks omitted) (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). ... Close According to the Third Circuit, any proffered acts not within these two narrow categories must be analyzed pursuant to Rule 404(b).

Under this narrow formulation of “intrinsic” evidence, the court held that the defendant’s threat to kill the witness was not intrinsic and thus fell under Rule 404(b). 185 185 Id. ... Close The court reasoned that the proffered evidence was not intrinsic because it did not directly prove that the de­fendant at­tempted to possess cocaine with the intent to distribute. 186 186 Id. ... Close Additionally, the proffered evidence “did not in any meaningful way facilitate his at­tempt to procure cocaine . . . the only crime with which [the defendant] was charged.” 187 187 Id. ... Close Ultimately, the court affirmed the admission of the evidence under a Rule 404(b) analysis, consistent with its position that the “inextricably intertwined” doctrine is unnecessary. The court found that the threat evidence was properly admitted under Rule 404(b) to provide important context to the jury and to explain the motives of a government witness that the defendant challenged at trial. 188 188 Id. at 250. ... Close

Similarly, in United States v. Gorman, the Seventh Circuit discarded the “inextricably intertwined” doctrine. 189 189 613 F.3d 711, 719 (7th Cir. 2010). ... Close In Gorman, the defendant was charged with perjury after he lied to a grand jury by testifying that he did not store a car in a parking garage. 190 190 Id. at 715. ... Close At trial, the government offered ev­idence that the defendant took two bags of money from the car, moved the car from its original location, and later abandoned the car. 191 191 Id. ... Close The trial court admitted this evidence as “inextricably intertwined” with the perjury charge, and the defendant was convicted. 192 192 Id. ... Close

The Seventh Circuit affirmed the conviction but explicitly held that “[h]enceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility.” 193 193 Id. at 719. ... Close The court acknowledged that “[t]here traditionally have been subtle distinctions between direct evi­dence of a charged crime, inextricable intertwinement evidence, and Rule 404(b) evidence,” but found that courts have frequently “lumped together these kinds of evidence” and have clouded “the already murky waters of the inextricable intertwinement doctrine.” 194 194 Id. ... Close Consequently, the court held that “the inextricable intertwinement doctrine has since be­come overused, vague and quite unhelpful” and pronounced that the doctrine “has outlived its usefulness.” 195 195 Id. ... Close

In examining the evidence of the defendant’s conduct with respect to the car in the garage, the court found it admissible without the need to invoke the intertwinement doctrine:

Because the basis for the perjury charge was that [the defen­dant] denied “having” the car in his garage, his theft of the car and extrication of the money from within were direct evidence of his false testimony. The fact that [the defendant] removed the Bentley from the garage demonstrated that he “had” a Bentley in the garage in the first instance. Therefore, this evidence was properly admitted, albeit as direct evidence rather than inextricable intertwinement evidence. 196 196 Id. For another example of this reasoning, see United States v. Schmitt, 770 F.3d 524, 533 (7th Cir. 2014) (finding the “district court’s conclusion that the drug evidence was ‘inextricably intertwined’ with the charged act and ‘fill[ed] the story’” ran counter to recent precedent and was “not dispositive on the issue of relevance or the ultimate admissibility of the drug evidence”). For further discussion of the Seventh Circuit’s position on the “inextricably intertwined” doctrine, see Jaime L. Padgett, How Less Is More: The Unraveling of the Inextricable Intertwinement Doctrine Under United States v. Gorman, 6 Seventh Cir. Rev. 196, 229 (2010) (applauding the court for abandoning the “inextricably intertwined” doctrine). ... Close

Similarly, in United States v. Bowie, the D.C. Circuit refused to apply the “inextricably intertwined” test to determine the admissibility of evi­dence offered to “complete the story” or “explain the circumstances” of the charged crime. 197 197 232 F.3d 923, 928–29 (D.C. Cir. 2000). ... Close In rejecting the test, the court reasoned that acts truly “intrinsic” to the charged crime “will, by definition, always satisfy Rule 404(b).” 198 198 Id. at 927. ... Close Thus, the only real impact of branding other-acts evi­dence “inextricably intertwined” is “to relieve the prosecution of Rule 404(b)’s notice requirement and the court of its obligation to give an appropriate limiting instruction upon defense counsel’s request.” 199 199 Id. ... Close The Bowie court concluded that “there is no general ‘complete the story’ or ‘explain the circumstances’ exception to Rule 404(b)” and that “Rule 404(b), and particularly its notice requirement, should not be disre­garded on such a flimsy basis.” 200 200 Id. at 929. ... Close

Notwithstanding this trend to eliminate or restrict resort to the “inex­tricably intertwined” doctrine, other circuits continue to employ the doc­trine broadly to find that Rule 404(b) is inapplicable. In these circuits, “evidence used to ‘complete the story’ is pretty much the same as evidence admitted for ‘context’ under Rule 404(b).” 201 201 Spring 2017 Advisory Comm. Meeting Agenda, supra note 73, at 326 (describing the split of authorities). ... Close Indeed, evidence found “in­trinsic” in these circuits could often be characterized as evidence of state of mind or consciousness of guilt, which fall under the purview of Rule 404(b). 202 202 Id. For examples of cases using this reasoning, see, e.g., United States v. Loftis, 843 F.3d 1173, 1176–77 (9th Cir. 2016) (finding uncharged fraudulent transactions are intrinsic to the charged scheme); United States v. Ali, 799 F.3d 1008, 1026–27 (8th Cir. 2015) (finding evidence that defendant supported al Shabaab before it was designated a terrorist organization “intrinsic” to a conspiracy charge because it “provid[ed] context to the charged crime”); United States v. Castleman, 795 F.3d 904, 915 (8th Cir. 2015) (find­ing that death threats against witnesses, offered to prove consciousness of guilt in a drug prosecution, constituted “‘direct evidence of the crime charged’ and [were] not subject to a Rule 404(b) analysis” (quoting United States v. Zierke, 618 F.3d 755, 759 (8th Cir. 2010))); United States v. Ford, 784 F.3d 1386, 1394 (11th Cir. 2015) (“[E]vidence of uncharged conduct that is part of the same scheme or series of transactions and uses the same modus operandi as the charged offenses is admissible as intrinsic evidence outside the scope of Rule 404(b).”); see also Imwinkelried, The Second Coming, supra note 65, at 726 (noting that when courts have invoked the inextricably intertwined doctrine, they could “just as easily” have used a “noncharacter theory” under Rule 404(b)). ... Close Therefore, there remains a split of author­ity regarding proper application of Rule 404(b) and the role that the doctrine of “intrinsic” or “inextricably intertwined” acts plays in the Rule 404(b) analysis.

IV. Amending Federal Rule 404(b): The Possibilities

The growing divide between circuits that have curtailed the admissi­bility of other-acts evidence in criminal cases and those that have routinely admitted evidence of a criminal defendant’s past crimes signals that the time is ripe for an amendment to Federal Rule of Evidence 404(b). 203 203 See 28 U.S.C. § 2073(b) (2012) (authorizing changes to the rules “as may be necessary to maintain consistency”). ... Close The concerns and limitations, outlined most prominently in the Seventh and Third Circuit cases described above, provide several possibil­ities for amendment. 204 204 See supra notes 101–109, 116–131, 140–152, 155–165, 171–196 and accompanying text (summarizing the Third and Seventh Circuit’s decisions). ... Close Consequently, the Advisory Committee is currently considering a number of proposals to amend Rule 404(b). 205 205 Spring 2017 Advisory Comm. Meeting Agenda, supra note 73, at 17–20. ... Close This Part discusses the drafting alternatives being considered by the Committee.

A. A Propensity Inference Ban

One possibility for amending Federal Rule of Evidence 404(b)(2) would be to add language expressly prohibiting the use of any other crime, wrong, or act if its probative value depends at all upon a pro­pensity infer­ence that suggests that a defendant is guilty of a charged crime because “she did it before.” A strict propensity ban would eliminate any interpre­tation of Rule 404(b) as a rule of “inclusion.” 206 206 A Committee Note might also address the problem, but that would depend on what textual amendments are proposed. A Note must be attendant to some change to the text. See 28 U.S.C. § 2073(d). Moreover, the Rule Committees follow a practice that a Committee Note cannot establish rules that are not found in the text. See Spring 2017 Advisory Comm. Meeting Agenda, supra note 73, at 315–16 (“The problem is such a profound one (with such a substantial impact on litigation) that if it is going to be addressed, it should probably be addressed in text, with an explanatory note in support.”). ... Close Such an amendment would echo the recent opinions of the Third, Fourth, and Seventh Circuits and would go hand in hand with a require­ment that the proponent of Rule 404(b) evidence and the district court articulate with “careful precision” the chain of reasoning that demon­strates the probative value of the other act to ensure that it does not rely upon a propensity inference. 207 207 See, e.g., United States v. Caldwell, 760 F.3d 267, 274 (3d Cir. 2014). ... Close An amendment that expressly bans use of a crime, wrong, or act that depends upon a propensity inference could also assist litigants and judges in polic­ing such a requirement by beefing up the notice provisions of Rule 404(b). 208 208 Requiring that proponents of other-acts evidence articulate a nonpropensity chain of reasoning in their Rule 404(b) notice without adding an express prohibition on propensity in the substantive standard is another alternative. Changing the notice provision alone, however, would be less effective than an amendment that alters both the substantive standard of admissibility and the notice provision. A violation of a substantive provision renders evidence inadmissible. See, e.g., United States v. Hitesman, No. 14-CR-00010-LHK-1, 2016 WL 3523854, at *5 (N.D. Cal. June 28, 2016) (excluding evidence of the defendant’s prior bank robbery convictions because they were insufficiently distinctive to show identity as required by Rule 404(b)(2)). A violation of the notice provision, how­ever, means only that the proponent failed to timely articulate a nonpropensity purpose, and it will be in the discretion of the court whether to exclude the evidence. See Fed. R. Evid. 404(b)(2)(B) (requiring only “reasonable notice” and permitting trial courts to “excuse” lack of pretrial notice altogether for good cause); see also United States v. Perez-Tosta, 36 F.3d 1552, 1560–63 (11th Cir. 1994) (affirming the trial court’s decision to admit Rule 404(b) evidence notwithstanding the government’s failure to give notice until just before voir dire and concluding that the defendant could not show prejudice from fail­ure). In other words, a notice provision does not itself guarantee that the bad-acts evidence will have to proceed through nonpropensity inferences; rather, the notice pro­vision would only guarantee timely articulation of the proponent’s nonpropensity purpose. ... Close Adding both a propensity ban and enhanced notice requirements will assure timely notice of nonpropensity arguments, and will also provide specific authority for the court to exclude the bad-acts evidence if the probative value for the asserted purpose actually proceeds through a propensity inference.

This amendment to Rule 404(b) could add the emphasized language below and read:

(b) CRIMES, WRONGS, OR OTHER ACTS.

(1) Prohibited Uses. Evidence of a 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. 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. But the probative value for the other purpose may not depend on a propensity inference. 209 209 The notice provision in current Rule 404(b) appears in subsection (2) as part of the substantive admissibility limitations. See Fed. R. Evid. 404(b). If the propensity prohi­bition is added as above, it would make sense to drop Rule 404(b)’s notice provision to a new and separate subsection (3) independent of the substantive provisions governing ad­missibility. A separate notice subsection would be consistent with the structure of Federal Rule of Evidence Rule 412, which includes subsection (c) governing the “Procedure to Determine Admissibility” separate from the previous subsections dictating substantive ad­missibility. See Fed. R. Evid. 412(c). ... Close

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must: 210 210 Because the requirement that the defendant “request” notice is complied with on a pro forma basis, it adds nothing but a trap for the unwary to the operation of the notice provision. For this reason, the Advisory Committee has already approved in principle a proposed amendment to the Rule 404(b) notice provision that eliminates the requirement of a defense “request” for notice. See Fall 2016 Advisory Comm. Meeting Agenda, supra note 15, at 31. ... Close

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial;

        (B) articulate in the notice the nonpropensity purpose for which the prosecution intends to offer the evidence;

        (C) articulate the chain of reasoning supporting the purpose for offering the evidence; and

(D) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice. 211 211 This proposal places the good cause exception last to make clear that it applies to all of the prosecution’s notice and articulation obligations. One problem with requiring detailed articulation of nonpropensity purposes within the criminal notice provision is that this would deprive judges and litigants in civil cases of such detailed information in advance of trial to assist them in ascertaining nonpropensity purposes for other-acts evi­dence. Although the problems in the admission of other-acts evidence have largely arisen on the criminal side, this evidence can present difficulties in the civil context as well. See Lisa Marshall, Note, The Character of Discrimination Law: The Incompatibility of Rule 404 and Employment Discrimination Suits, 114 Yale L.J. 1063, 1076 (2005) (“[W]hen plaintiffs purport to offer evidence of an employer’s ‘motive,’ they overwhelmingly do so [because] . . . [t]he employer’s prior acts reveal that the employer has some discriminatory mindset . . . .”). To obtain the maximum benefit from expanded notice and articulation requirements, therefore, the Advisory Committee could consider extending the notice provision to civil cases. ... Close

Such an amendment, which combines an express propensity ban with enhanced notice provisions, could include an Advisory Committee Note explaining the meaning and impact of the changes, as follows:

The amendment emphasizes that it is not enough simply to articulate a noncharacter purpose for evidence of other crimes, wrongs, or acts. In order for Rule 404(b) to protect in accor­dance with its intent, the probative value of the evidence for the proper purpose cannot be dependent on a propensity infer­ence. For example, if evidence of uncharged misconduct is offered to prove intent, it cannot be admitted for that purpose if the inference is, “because the bad act shows the accused has a propensity to commit a crime like the one charged, it tends to prove the accused had the intent to commit the charged crime.” The proponent must therefore articulate to the court the chain of inferences from the bad-acts evidence to the purpose for which it is offered and explain how that chain of inferences does not depend on the actor’s propensity.

An absolute ban on propensity could present some significant prob­lems, however. First, one might argue that “adding” a ban on the pro­pen­sity inference to Rule 404(b)(2) merely reiterates the prohibition already stated in Rule 404(b)(1) that provides: “Evidence of a 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.” 212 212 Fed. R. Evid. 404(b)(1). ... Close An amendment to the Federal Rules of Evidence that provides, in essence, “We really mean it—please follow the rule,” is certainly not in keeping with effective rulemaking. Further, such a potentially redundant admonition may do little to curb the abuses of Rule 404(b) by the federal circuits already inclined to admit other-acts evidence permissively.

Even if one might interpret the existing language of Rule 404(b)(1) as creating a de facto propensity prohibition, the fact remains that Rule 404 nowhere uses the term “propensity.” Instead, the Rule speaks in terms of proving that a “person acted in accordance” with character. 213 213 See Fed. R. Evid. 404(a)(1), (b)(1). ... Close Amending Rule 404(b) to introduce a ban on “a propensity inference” would require courts to define this new terminology and to engage in the difficult task of determining with precision which uses of other-acts evi­dence involve a propensity inference—especially when the proper pur­pose is intent. As Judge Tjoflat emphasized in his special concurrence in United States v. Matthews, “[T]he line between evidence admitted to de­monstrate intent and evidence admitted to demonstrate propensity is hardly clear.” 214 214 431 F.3d 1296, 1313 n.1 (11th Cir. 2005) (Tjoflat, J., concurring in the judgment). ... Close Introducing new terminology into the Rule is certain to invite costly litigation aimed at interpreting it.

Assuming that an amendment that adds a propensity ban to Rule 404(b)(2) would alter the existing meaning of Rule 404(b), it could also alter existing, well-accepted uses of other-acts evidence. To be sure, the use of other-acts evidence to prove a defendant’s knowledge and intent poses the greatest propensity risk. 215 215 See supra section III.B (discussing several federal cases illustrating the difficulties of separating the permissible purposes of knowledge and intent from impermissible pro­pensity inferences). ... Close But even commonly accepted “pro­per purposes” for other-acts evidence could be seen as involving some degree of propensity reasoning. Take classic modus operandi evidence as an example. Imagine a bank robber with a distinctive signature—perhaps the robber wears a ball cap with Mickey Mouse emblazoned on the front and leaves tellers with typewritten thank-you notes in Chaucerian English on heavy cardstock stationery. If a defendant were charged with robbing a bank in this way, her strikingly similar method of operation in a previous bank robbery would have a strong tendency to suggest the de­fendant’s identity in connection with the charged offense. When a defendant con­tests her identity, at least, all courts would agree that other-acts evidence that rises to the level of a signature should be admissible to prove identity pursuant to Rule 404(b)(2). 216 216 See, e.g., United States v. Gutierrez, 696 F.2d 753, 755 (10th Cir. 1982) (noting that “[i]f the crimes share elements that possess ‘signature quality,’ evidence of the ‘other crime’ may be admitted” when identity is in dispute). ... Close To be sure, such modus operandi evidence relies on an assumption about how objectively unlikely it would be for a dif­ferent person to light upon this same distinctive method of operation to rob a bank. 217 217 Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 907 (discuss­ing the doctrine of objective chances). ... Close But this type of “signature” evidence surely relies to some extent upon a degree of pro­pensity reasoning. If the defendant did the crime in this unique way before, the defendant is the one who probably did it in the same unique way again because of her unusual tendency to operate in this manner. To effectuate a true ban on propensity, courts will be forced to define “propensity,” to ferret out any reliance on a propensity inference, and to reject other-acts evidence the probative value of which relies to any degree on such an inference.

Further, while the “intent” purpose for other-acts evidence has been one of the most abused “proper purposes” under existing precedent, a wholesale ban on propensity inferences would risk eliminating “intent” as a proper purpose for other-acts evidence altogether, even in cases in which it would be appropriate. In cases like the pair of Smith cases dis­cussed above, courts have misused the intent purpose for other-acts evidence, allowing a defendant’s past drug offenses to prove “intent” to commit a current offense even when the defendant does not dispute knowledge of drugs or intent to possess or sell them, but simply denies commission of the charged offense. 218 218 See supra notes 47–62 and accompanying text. ... Close In such cases, a defendant is essen­tially saying, “I didn’t engage in this conduct at all.” In cases like these, the only probative value of prior drug offenses is to show that a defendant is more likely to “commit” an offense involving drugs because the defendant has done so in the past. This is pure propensity and should be prohibited as violating the ban on character evidence. Adding an express prohibition on any chain of reasoning that relies on pro­pensity to Rule 404(b) could curb abuses such as these.

It may be appropriate, however, to permit use of other-acts evidence to prove intent in cases in which it is probative and necessary to refute a specific defense raised by a criminal defendant—even though that use involves some reliance on a propensity inference. For example, take a de­fendant charged with willful tax evasion due to failure to report cash earnings as taxable income. Such a defendant might concede earning the money, as well as the failure to report it to the IRS, and yet deny the necessary intent to evade taxes. 219 219 See, e.g., United States v. Townsend, 31 F.3d 262, 267 (5th Cir. 1994) (noting that voluntary, intentional violation is an element of tax evasion). ... Close The defendant could argue that the failure to include the particular earnings stemmed from oversight and for­getfulness but not from an intent to avoid legal tax obligations or to defraud the IRS. To rebut this defense, evidence that the same defendant had earned significant cash income during one previous uncharged time period (in an amount impossible to “forget”) and failed to report it for that time period would be highly probative of the absence of any “mis­take” or “accident” and of the defendant’s “intent” to evade tax obliga­tions. The fact that the defendant had willfully failed to report earnings before could powerfully refute the defendant’s specific defense of accident raised in the instant case.

Because proof of state of mind is elusive and because obtaining alter­native evidence to combat the defendant’s purported reasons for the current failure to report would be difficult, the probative value of such prior con­duct for the government would be high and would surely eclipse the risk that the jury would use the prior act simply to assume, “Once a tax evader, always a tax evader,” or to punish the defendant for past misdeeds. Thus, when a defendant like this one actively contests state of mind or intent, prior intentional acts may be extremely important to the government’s ability to respond. And yet, a complete ban on any purpose for which a propensity inference is required could eliminate the prosecution’s ability to use this defendant’s prior act be­cause it would be arguing that the previous failure to report taxes knowingly and intentionally makes it more likely that the current failure to report was also knowing and intentional. The defendant willfully did it before, making it more likely that this time, it was also willful. The spec­ter of “propensity” rears its head.

One could attempt to argue that the doctrine of “objective chan­ces” 220 220 See Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 907 (explaining the doctrine of objective chances, which supports an inference of guilty know­ledge and intent based on the “improbability of coincidence” and the objective unlikeli­hood that an innocent person will repeatedly find herself in suspicious circumstances). ... Close supports the inference of intent in such a circumstance, rather than propensity. If the defendant did it on purpose previously, what are the chances that this time was inadvertent? If the government could prove many prior intentional acts, such “objective chances” might be said to sup­port the showing of intent without regard to any propensity inference. But when the government can point to only a single prior in­stance, as in this hypothetical and in many actual cases, it is very hard to see how one might draw an inference of intent in the absence of any inference about the defendant’s tendencies with respect to tax evasion. Similar legitimate uses of other acts to show “intent” could come up in classic federal drug pros­ecutions as well, such as when a defendant concedes the possession of a distribution quantity of drugs but argues specifically that she had no intent to distribute and planned to maintain the large quantity for personal use. Previous distribution convictions or convictions for possession with intent to distribute would be important to the government’s ability to refute this testimony but would certainly de­pend upon some propensity inferences.

This use of other-acts evidence is emblematic of the traditional “door-opening” or “turnabout is fair play” operation of the evidence rules. 221 221 See Huddleston v. United States, 485 U.S. 681, 688 (1988) (“The Advisory Committee specifically declined to offer any ‘mechanical solution’ to the admission of evidence under 404(b). Rather, the Committee indicated that the trial court should assess such evidence under the usual rules for admissibility . . . .” (citation omitted)); James P. Gillespie, Note, Federal Rule of Evidence 106: A Proposal to Return to the Common Law Doctrine of Completeness, 62 Notre Dame L. Rev. 382, 390 & n.78 (1987) (citing Rule 404(a)(1) as performing a “door opening” function). ... Close And yet, the use of prior acts of drug distribution or nonre­porting of in­come in either of these cases would suggest intent and knowledge, at least in part, by way of a propensity inference. 222 222 See Milich, supra note 9, at 786 (“[T]he distinction between legitimate ‘propensity free’ inferences from character evidence and disfavored propensity uses is far from clear and is difficult to apply. Many of Rule 404(b)’s admissible uses of character evi­dence are more or less dependent on propensity inferences.”); Morris, supra note 10, at 191 (“The earlier drug use, which is behavioral evidence, can be relevant only if we as­sume that the defendant’s behavior forms an unchanging pattern.”). ... Close Placing an absolute prohibition on a propensity inference, as the Seventh and Third Circuits have done, may swing the pendulum too far in the direction of exclusion and prevent government use of other-acts evidence even in compelling circumstances that would be in keeping with the original intent behind Rule 404(b). In­deed, an express propensity ban may write “intent” off the list of proper purposes under Rule 404(b)(2). 223 223 See Sonenshein, supra note 10, at 275 (“Rule 404(b) should be amended to exclude intent from its list of permissible offers.”). ... Close

Finally, enforcing a complete ban on the propensity inference also requires “careful precision” and exact articulation of the reasoning sup­porting the use of other-acts evidence by the trial judge, as noted in the recent Repak case out of the Third Circuit. 224 224 United States v. Repak, 852 F.3d 230, 244–45 (3d Cir. 2017) (internal quotation marks omitted) (quoting United States v. Caldwell, 760 F.3d 267, 281 (3d Cir. 2014)). ... Close Although the trial judge in that case provided paragraphs of analysis supporting the admission of other-acts evidence by the government, the Third Circuit found that the district court’s findings fell short. 225 225 Id. (“In essence, this was the ‘mere recitation of the purposes in Rule 404(b)(2)’ that we have previously deemed inadequate.” (quoting Caldwell, 760 F.3d at 277)). ... Close Like a law professor critiquing a stu­dent’s paper, the Third Circuit chastised the district court for omitting the magic words establishing precisely how the other-acts evidence dem­onstrated intent without reliance on propensity. 226 226 See id. ... Close Although detailed record findings supporting the admissibility of other-acts evidence are ap­propriate, helpful, and should be encouraged, to reject the extensive analysis performed by the trial judge in Repak places an impossible burden on even the most careful trial judge to find just the right words to elimi­nate the slippery specter of propensity. 227 227 See Mueller & Kirkpatrick, supra note 18, § 4:29 (“There may even be a risk that a hard rule demanding that judges jump through hoops every time such evidence is of­fered would lead to recitations of stock phrases that do little to assure the exercise of care.”). ... Close

An amendment to Rule 404(b) that holds trial judges to such exacting standards could prove inefficient and unrealistic, even when decisions are made in advance of trial, but particularly when other-acts objections are raised during the heat of a criminal trial. Such mandatory detail and pre­cision would hamstring trial judges and slow down proceedings. In addition, such a requirement would place new burdens on prosecutors to identify and articulate the precise reasoning support­ing the use of any other-acts evidence to include in their pretrial notices. Indeed, as set forth above, an amended notice provision would be a likely and necessary com­panion to an amendment that flatly prohibits pro­pensity reasoning. 228 228 See supra notes 206–212 and accompanying text. ... Close Although the notice provision would excuse a lack of such precise articulation for “good cause,” prosecutors may risk losing other-acts evi­dence due to a failure to predict precisely in advance of trial the reasoning supporting a proffer of other-acts evidence.

In sum, while a propensity ban could potentially serve to curb some of the worst abuses in Rule 404(b) cases, it is rife with thorny problems that could thwart its operation.

B. Requiring “Active Contest”

To address the many federal decisions in which courts find that de­fendants open the door to other-acts evidence simply by pleading not guilty—and to assure that the prosecution would not be allowed to admit bad acts to show a proper purpose that the defendant does not even con­test—Rule 404(b)(2) could be amended to require “active contest” by the opponent of his “motive, opportunity, intent, preparation, plan, know­ledge, identity, absence of mistake, or lack of accident.” 229 229 Fed. R. Evid. 404(b)(2). ... Close Such an amend­ment would be in keeping with recent precedent in the Seventh and Third Circuits discussed above. 230 230 See supra section III.C. ... Close

This amendment would appear within Rule 404(b)(2) and could read:

(b) CRIMES, WRONGS, OR OTHER ACTS.

(1) Prohibited Uses. Evidence of a 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—where that purpose has been actively contested by the opponent. 231 231 Spring 2017 Advisory Comm. Meeting Agenda, supra note 73, at 335. This version of Rule 404(b) emphasizes language that could be added to create an “active contest” requirement. An amendment mandating “active contest” by the opponent of Rule 404(b) evidence could be combined with an amendment expressly banning a propensity chain of reasoning or could be added independently. Instead of amending the text of Rule 404(b)(2) to require “active contest” by the opponent, the Advisory Committee alter­natively could address the importance of “active contest” in a committee note accompa­nying other amendments to the Rule, such as the propensity ban. This option, however, risks the note doing much more than the text. Moreover, the note would be guidance but not controlling. ... Close

There would be undeniable benefits to an approach that required “active contest” before permitting other-acts evidence. First, the cases holding that a criminal defendant “opens the door” to evidence of his prior misdeeds simply by pleading “not guilty” would effectively be over­ruled by such an amendment. 232 232 See supra note 166 (discussing cases in which the court admitted evidence of prior bad acts given defendants’ not guilty plea). ... Close In the classic possession with intent to distribute prosecution, for example, even the most permissive jurists would be hard-pressed to find that a defendant actively contested “in­tent” merely by denying the commission of the offense and going to trial. And of course, a committee note could shore matters up by stating that the textual change is indeed intended to overrule this precedent.

Additionally, such an amendment would continue to allow other acts to be proved in cases like the hypothetical tax evasion or possession with intent to distribute prosecutions described above. By claiming accidental failure to report income, or an intent to keep a large quantity of drugs for purely personal use, a criminal defendant would actively contest in­tent and open the door to probative other-acts evidence proffered by the pros­ecution. Indeed, an amendment that adds an “active contest” requirement to Rule 404(b) could prove more effective and offer a bet­ter calibration in the admission of other-acts evidence than an amend­ment that bans pro­pensity inferences altogether. 233 233 Of course, if an amendment were to combine both a propensity ban and an “active contest” requirement, all the difficulties in the application of a propensity ban would continue to be in play. ... Close

That said, an “active contest” requirement would present significant concerns in application that could prove even more insurmountable than the obstacles facing courts and litigants in policing a propensity ban. First and foremost, such an amendment would require parties to define and trial courts to interpret the contours of the term “active con­test.” Because determining whether a defendant has actively con­tested a particular point may be murky at best, courts and litigants may be forced to expend signif­icant resources pursuing this elusive standard. Notwith­standing predicta­ble battles over an “active contest” require­ment, it is nearly impossible to articulate lines that can be drawn consistently.

Courts would have to adopt a case-by-case approach to address the questions sure to arise about various degrees of “active contest.” For ex­ample, courts would have to determine to what extent arguing that the government has not proven every element of the offense beyond a reason­able doubt constitutes “active contest” of all elements of the offense. If a government witness testifies in a way that tends to prove a defendant’s intent to commit the charged crime, and the defendant sim­ply attacks the witness’s credibility, courts will have to determine whether that impeach­ment constitutes “active contest” of intent. Moreover, questions are certain to arise about timing if a defendant delays actively contesting the mental element of the offense until late in the case. For example, if the defense does not contest intent until calling witnesses in its case-in-chief, the prosecution will need to present rebuttal witnesses to present its Rule 404(b) evidence. And requiring “active contest” as a prerequisite to admitting other-acts evidence would create extreme diffi­culties if a de­fendant waits to contest intent until closing arguments after the close of all evidence. Because it seems impossible to draft rule text that will accurately cover all possible nuances, an amendment that adds such a re­quirement may not be worth the candle. 234 234 Spring 2017 Advisory Comm. Meeting Agenda, supra note 73, at 321. The problem of line drawing here is analogous to the situation in which the defendant, at a proffer session, signs an agreement that his statements can be used in contradiction of a position that the defense takes at trial. Just recently, the Second Circuit, in a lengthy opin­ion, analyzed a variety of arguments that the defendant could make without opening the door, and also described a number of arguments the making of which would open the door to allow admission of the proffer statements. See United States v. Rosemond, 841 F.3d 95, 110–14 (2d Cir. 2016). The length and specificity of the analysis is most helpful. But it is the kind of analysis that is probably better found in a lengthy opinion than in the text of an Evidence Rule. ... Close

Indeed, federal judges already disagree about the type of defense that creates a dispute that may be resolved by other-acts evidence. For example, in United States v. Hall, the government prosecuted the defen­dant for the possession with intent to distribute marijuana, as well as for gun offenses, based upon the presence of marijuana and guns in a lock­­ed bedroom in his house. 235 235 858 F.3d 254, 259 (4th Cir. 2017). ... Close Because the government could not prove the defendant’s actual possession of the contraband, it relied on his con­structive posses­sion of the drugs and guns in his house to prove its case. 236 236 Id. ... Close At trial, the defendant offered the testimony of a cousin who claimed that he also lived in the house and that the drugs and guns in the locked room belonged to him and not to the defendant. 237 237 Id. at 261, 263. ... Close Over a defense objection, the govern­ment admitted the defendant’s four prior marijuana offenses to demonstrate the defendant’s knowledge of the marijuana and intent with respect to the drugs in the locked room. 238 238 Id. at 262–64. ... Close

On appeal, the Fourth Circuit found admission of the defendant’s prior convictions erroneous due in part to the defendant’s failure to contest knowledge and intent. 239 239 Id. at 263–64. ... Close The majority noted that the defendant did not dispute his knowledge of marijuana or that he intended to dis­tribute it if he possessed it but argued only that he had no dominion or control over the drugs and guns in the locked room. 240 240 Id. at 263. ... Close A vehement dissent argued that the defendant’s presentation of a “cock-and-bull” story characterizing himself as an innocent occupant randomly living in a resi­dence housing a marijuana distribution operation was sufficient to ac­tively contest defendant’s knowledge and intent and to open the door to his prior marijuana convictions. 241 241 Id. at 290–91 (Wilkinson, J., dissenting). ... Close Enshrining an “active contest” re­quire­ment within the text of Rule 404(b) is certain to intensify the already heated debate among the federal courts about what it means to actively contest an element, without offering any hard and fast answers.

Hall raises another concern about an “active contest” amendment, namely that there may be circumstances in which “active contest” should not be a necessary predicate to use of other-acts evidence. Another poten­tial purpose for admitting the defendant’s prior convictions in Hall could have been to impeach his testifying cousin based upon bias. 242 242 See id. at 291. The majority rejects this argument in part because the government did not rely on this basis for admitting the prior convictions. See id. at 285–86 (majority opinion). ... Close The defendant’s previous record illustrated why his cousin might be willing to take the fall to protect the defendant from the significant prison time he would face as a repeat offender. Even if the defense did not actively contest the defend­ant’s knowledge or intent, the defendant’s prior convictions would tend to discredit his cousin without relying upon any propensity reasoning whatsoever. The defendant’s record and the cous­in’s lack of record gave the cousin a powerful incentive to accept responsibility in the defendant’s place. These facts could have helped the jury evaluate the credibility of the cousin’s testimony. Of course, the Rule 403 balancing required as part of the Rule 404(b) analysis might serve to exclude defendant’s prior drug convictions offered for this purpose when the prejudice of potential pro­pensity could substantially outweigh any impeachment value. But it would be close, given that the cousin was the star witness for the defense and given that Rule 403 favors admissibility by requiring that prejudice “sub­stantially outweigh” proba­tive value. Most importantly, the impeachment purpose for offering the prior convictions would seem to be a proper nonpropensity purpose despite the absence of “active contest” by the defendant. Even the Seventh Circuit in Gomez articulated the need for “active contest” by the defendant in prosecutions involving general intent crimes, but recog­nized that such a wholesale requirement would not be appropriate for proving specific intent crimes. 243 243 United States v. Gomez, 763 F.3d 845, 858–59 (7th Cir. 2014) (en banc). ... Close

In addition, although the recent push to restrict Rule 404(b) evidence in the federal courts has targeted common abuses in the admission of other-acts evidence against criminal defendants, adding an “active con­test” requirement to Rule 404(b)(2) would not serve to pro­tect criminal defendants alone. Any litigant seeking to offer evidence of acts other than those at issue in a given case must comply with Rule 404(b). 244 244 See Fed. R. Evid. 1101(b) (requiring that the Federal Rules of Evidence apply in “civil cases and proceedings” and “criminal cases and proceedings”). ... Close Hence, re­quiring an opponent to actively contest an element or issue before other-acts evidence may be admitted would burden criminal defendants relying upon Rule 404(b)(2) to advance reverse 404(b) evidence, as well as civil litigants who must also resort to Rule 404(b)(2) to offer evidence of other crimes, wrongs, or acts. 245 245 Although it would require a criminal defendant offering reverse 404(b) evidence to articulate the “active contest” to which the evidence goes, the government would ac­tively pursue every element in a criminal case in order to meet its burden of proof. ... Close There­fore, an “active contest” requirement may be an overly broad response to specific problems involving government reliance on Rule 404(b) evi­dence in criminal cases.

Furthermore, adding an “active contest” mandate to Rule 404(b) threatens to undermine and obfuscate the meaning of the Supreme Court’s dicta in Old Chief v. United States. 246 246 519 U.S. 172, 190 (1997). ... Close In Old Chief, the Court held that a defendant’s offer to stipulate to his felon status during his trial on a felon-in-possession charge rendered proof of his prior felony assault inad­missible under Rule 403. 247 247 Id. at 174, 191–92. ... Close In the course of its reasoning, however, the Court emphasized that the government generally has the authority to “prove its case by evidence of its own choice.” 248 248 Id. at 186–87. ... Close More specifically, as to Rule 404(b), the Court stated that “if . . . there were a justification for re­ceiving evidence of the nature of prior acts on some issue other than status (i.e., to prove ‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,’ Fed. Rule Evid. 404(b)), Rule 404(b) guarantees the opportunity to seek its admission.” 249 249 Id. at 190 (emphasis added). ... Close

Notably, Old Chief distinguished between stipulations to the defend­ant’s legal status, which can be forced upon the prosecution, and stipulations to other elements of a crime, such as “intent” or “know­ledge,” which the prosecution is entitled to reject. 250 250 Id. at 190–91. ... Close The Court reasoned “that proof of the defendant’s status goes to an element entirely outside the nat­ural sequence of what the defendant is charged with thinking and doing to commit the current offense.” 251 251 Id. at 191. ... Close In contrast, the intent and knowledge elements go directly to “what the defendant is charged with thinking and doing to commit the current offense.” 252 252 Id. ... Close Since Old Chief, federal courts have followed the Supreme Court’s lead with respect to stipulations and Rule 404(b). In United States v. Crowder, for example, the D.C. Circuit sit­ting en banc relied on the Old Chief dictum in reaching its holding: “[W]e hold that a defendant’s offer to stipulate to an element of an offense does not render the government’s other crimes evidence inadmissible under Rule 404(b) to prove that element, even if the de­fendant’s proposed stipulation is unequivocal . . . .” 253 253 141 F.3d 1202, 1209 (D.C. Cir. 1998). ... Close

The addition of an “active contest” requirement to Rule 404(b) would seem to undermine the Supreme Court’s dictum in Old Chief and to reverse the result in cases like Crowder. By definition, an “active con­test” precondition to the admission of other-acts evidence would mean that a defense offer to concede a particular point through a binding stipulation would foreclose access to Rule 404(b) evidence on that point, period. In­deed, in Gomez, in discussing its “active contest” requirement, the Seventh Circuit cited Old Chief for the proposition that “if a defendant offers to concede or stipulate to the fact for which the evidence is offered,” such as mental state, “additional evidence may have little probative value,” thereby making bad acts inadmissible. 254 254 United States v. Gomez, 763 F.3d 845, 857 (7th Cir. 2014) (en banc) (citing Old Chief, 519 U.S. at 191–92). ... Close An amendment designed to pre­vent overreaching by the prosecution could, thus, serve to place defend­ants in the driver’s seat with respect to other-acts evidence, carefully stipulating to any element that might call for admission of prior misdeeds, while resting a defense on specific elements free from such risk. While probative value of other acts is already dimin­ished by a defendant’s offer to stipulate under the Rule 403 analysis that applies to Rule 404(b) evi­dence, a hard and fast amendment that gives criminal defendants exclu­sive control over the admissibility of other-acts evidence may swing too far in the other direction—unfairly hampering the government in carrying a heavy burden of proof.

A final problem with amending Rule 404(b) to include an “active con­test” requirement is that the requirement itself appears not to be grounded in Rule 404(b) at all. Rather it is more logically grounded in Rule 403, and most courts, such as the Gomez court, place the require­ment in Rule 403. 255 255 See id. at 856–57. ... Close Rule 404(b) requires the proponent to articulate a purpose for the bad-acts evidence other than to prove character and conduct in accord­ance therewith. Once the court finds that the evidence is probative for a proper, noncharacter purpose, the analysis shifts to Rule 403. Under Rule 403, the court determines whether the probative value for the non­character purpose is substantially outweighed by the prejudicial effect (that is, the risk that the evidence will actually be considered to demon­strate defendant’s character). 256 256 See Huddleston v. United States, 485 U.S. 681, 691 (1988). ... Close The government’s need to utilize other-acts evidence for a noncharacter purpose is dimin­ished if the defendant does not actively contest that purpose. Put another way, other-acts evidence may demonstrate knowledge, for exam­ple, with­out proceeding through any propensity inference in accordance with Rule 404(b), but the probative value of the evidence will be weak on the Rule 403 scale if the defendant does not actively contest know­ledge. 257 257 See, e.g., United States v. Ford, 839 F.3d 94, 109 (1st Cir. 2016) (finding the prior bad act satisfied Rule 404(b) since it was relevant to intent , but the defendant’s failure to contest intent “render[ed] the probative value of [the bad act] significantly reduced” un­der Rule 403). ... Close Therefore, considera­tion of a defendant’s “active contest” of an element of an offense is a key component of a sound Rule 403 analysis and not a component of Rule 404(b) at all. It would be odd to amend a rule when its major effect would be on a different rule. 258 258 Some may propose the alternative solution of adding the “active contest” require­ment to Rule 403, but that is a nonstarter. Rule 403 is iconic and applies to all sorts of evi­dentiary determinations. Amending Rule 403 to cover one of the many situations in which it applies would be disruptive and confusing. ... Close

In sum, while an examination of the live disputes in a criminal case is an essential part of determining the admissibility of other-acts evi­dence, an amendment to Rule 404(b) that makes “active contest” by the oppo­nent a hard and fast requirement may be impracticable and costly to po­lice and may unfairly disadvantage the government in its effort to prove charges beyond a reasonable doubt.

C. Inextricably Intertwined Doctrine Laid to Rest

Another possibility being considered by the Advisory Committee is to amend Rule 404(b) to rein in the overuse of the “inextricably inter­twined” doctrine by many federal courts. 259 259 See Spring 2017 Advisory Comm. Meeting Agenda, supra note 73, at 5 (noting the Advisory Committee’s intention to devote attention to the “inextricably intertwined” doctrine). ... Close As described above, federal courts rou­tinely rely on vague references to acts by a criminal defendant that are “inextricably intertwined” with the charged offense to bypass a Rule 404(b) analysis altogether. 260 260 See supra notes 63–72 and accompanying text. ... Close The recent Green and Gorman opinions in the Third and Seventh Circuits seek to eliminate or, at least, to limit the doc­trine of “inextricably intertwined” bad acts of a criminal defen­dant. 261 261 See supra notes 171–196 and accompanying text. ... Close Limiting the application of this doctrine through an amendment to Rule 404(b) could serve to channel a criminal defendant’s prior misdeeds through the intended Rule 404(b) analysis and to eliminate the shortcut routinely taken through liberal labeling of prior acts as “inex­tricably in­tertwined” with charged acts.

Although crafting an amendment to mark the elusive line between evidence “of” the charged act itself and evidence of “other” acts would be challenging, one potential textual remedy for the overly broad “inex­trica­bly intertwined” doctrine being considered by the Advisory Committee is to add a “direct/indirect” distinction to Rule 404(b)(1). 262 262 Advisory Comm. on Rules of Evidence, Fall 2017 Meeting Agenda 137–38 (Oct. 1, 2017), http://www.uscourts.gov/sites/default/files/a3_0.pdf [http://perma.cc/ER33-YCS4] (discussing the possibility of amending Rule 404(b) to include a “direct/indirect” distinction). ... Close Such an amendment could provide:

(b) CRIMES, WRONGS, OR OTHER ACTS.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act—offered as indirect evidence of a matter in dispute—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. 263 263 The emphasized language represents suggested additions to Fed. R. Evid. 404(b)(1). ... Close

A “direct/indirect” amendment like this one could prevent courts from casually applying an “inextricably intertwined” label in cases like United States v. Hilgeford, discussed above. 264 264 See supra notes 78–87 and accompanying text. ... Close To prove the willful filing of false tax returns, the government offered evidence that in the years prior to the challenged tax returns, Hilgeford generated “a blizzard of compli­cated and groundless litigation, primarily involving his fruitless attempts to regain his two farms.” 265 265 United States v. Hilgeford, 7 F.3d 1340, 1344 (7th Cir. 1993). ... Close Although the court held that Rule 404(b) was inapplicable because the baseless litigation was “‘intricately related to the facts of the case’ at hand,” 266 266 Id. at 1345 (quoting United States v. Hargrove, 929 F.2d 316, 320 (7th Cir. 1991)). ... Close an amendment requiring Rule 404(b) analy­sis of all acts proving the charged offense “indirectly” would force these acts into the Rule 404(b) framework because they did not even occur in the time period covered by the indictment—and were admis­sible if at all only as circumstantial evidence of the crime.

Such an amendment would not be without difficulties, however. For one thing, a distinction between “direct” and “indirect” evidence may in some cases fail to create a demarcation that is any clearer than that found in the existing case law. In the wire fraud prosecution in United States v. Loftis, for example, the Ninth Circuit overruled the trial court’s determi­nation that evidence of frauds not specified in the indictment would be evaluated under Rule 404(b). 267 267 843 F.3d 1173, 1176–77 (9th Cir. 2016). ... Close The court held that Rule 404(b) was in­applicable for two separate reasons. The first reason was that the crime charged included not only the specific executions of the fraud scheme alleged in the indictment, but also “the overall scheme.” 268 268 Id. at 1177. ... Close Thus, the uncharged frauds were direct evidence of the charged scheme to defraud. For cases like Loftis, even a “direct/indirect” distinction may be difficult to draw. And for courts currently inclined to apply the “inex­tricably inter­twined” doctrine broadly, such remaining ambiguity in a direct/indirect distinction presents a perfect opportunity to broadly con­strue the term “direct” in an amended rule to achieve similar results.

Second, even in cases in which the distinction between direct and indirect evidence seems clear, a textual distinction that sweeps all acts con­stituting “indirect” evidence of a charged offense into a Rule 404(b) analysis may expand the coverage of Rule 404(b) unnecessarily. For exam­ple, consider evidence that a defendant, charged with bank rob­bery, was seen the day after the robbery burning a ski mask in a trash can in his backyard. That is not “direct” evidence of the robbery itself, but it is not at all clear that this circumstantial evidence should have to proceed through Rule 404(b). On the other hand, evidence that the defendant shot a witness two days after the robbery is also “indirect” evidence that seems much more appropriate for Rule 404(b) treatment. The point is that there is significant room for argument and line drawing when it comes to acts that are “close” to the crime even if not part of the crime itself.

Increasing the coverage of Rule 404(b) to include acts like the burn­ing of the ski mask posited above certainly would not affect the ultimate admissibility of the evidence. Even if forced through a Rule 404(b) analy­sis, an act like destruction of evidence that demonstrates concealment and consciousness of guilt would have little propensity risk and would easily pass muster under the four-part Rule 404(b) test. Still, expanding the scope of Rule 404(b) with a “direct/indirect” distinction would generate significant work for prosecutors who would be required to iden­tify and give notice of all acts providing indirect evidence of the charged offense. The burdens in doing so, and the risk of losing technical Rule 404(b) evi­dence due to under-identification, hardly seem worth it to ad­mit probative and noncontroversial evidence that is causing no current problems in federal criminal cases. An expanded Rule 404(b) would create more work for trial judges too, who would have to perform the four-part Rule 404(b) analysis for all acts indirectly probative of the charged offense and to make findings on the record concerning their admissibility. For example, evi­dence that a criminal defendant purchased the gun used in the charged murder weeks before the killing ordinarily would not raise a Rule 404(b) issue. Under an amended rule containing a “direct/indirect” distinction, the trial judge would have to perform a full Rule 404(b) analysis before admitting this act offering only “in­direct” evidence of the charged murder. Amendments that tax already scarce judicial resources to increase scrutiny of highly probative and admissible evidence would seem ill-advised.

Finally, line drawing in the Rule 404(b) context can never be elimi­nated completely. Rule 404(b), by definition, applies only to “other” crimes, wrongs, or acts and not to the charged acts themselves. It may make little sense to amend the Rule and potentially create more work for liti­gants and judges without truly eradicating the slippery line-drawing exercise that precipitated it. While a “direct/indirect” distinction may be the best potential addition to Rule 404(b) to deal with the “inextricably intertwined” doctrine, it may be that an amendment can do no better than the courts have done in delineating what is covered by Rule 404(b) and what is not. Perhaps the best that can be hoped is that courts that currently treat “inextricably intertwined” as a res gestae exception to Rule 404(b) will heed the call of the circuits that have sought to impose more rigor on the doctrine. 269 269 See supra notes 170–182 and accompanying text. It should be said that a “direct/indirect” textual solution at least seems miles better than other possible fixes. For example, adding language that Rule 404(b) doesn’t apply to evidence of acts “inextricably intertwined” with the charged crime adds nothing to the enterprise. Moreover, if applying Rule 404(b) to all “indirect” evidence would end up expanding the Rule’s coverage in some courts, the consequences are not terrible. There will be costs of resolution, to be sure. But the only substantive difference is that the notice requirement of Rule 404(b) will apply—because indirect evidence close to the crime will almost certainly fit a noncharacter purpose like “background” or “context” and so will be admissible even if Rule 404(b) ap­plies to it. ... Close

V. An Elegant Solution to a Classic Problem: A More Protective Balancing Test for Criminal Defendants

Given all the potential pitfalls involved in amending the time-honored provisions of Rule 404(b), it is tempting simply to leave well enough alone and hope that the federal courts will follow the lead of the recent cases out of the Seventh, Third, and Fourth Circuits and restore Rule 404(b) to its intended role as a rule of exclusion. Indeed, some voices may decry any effort to alter the provisions of Rule 404(b) in any manner, arguing that the federal courts should be left to resolve inade­quacies in the Rule through judicial interpretation. 270 270 See Spring 2017 Advisory Comm. Meeting Agenda, supra note 73, at 18–19 (stating that some have suggested that the solution to the Rule 404(b) circuit split is “to allow courts to be influenced by the cases decided by the Seventh and Third Circuits”). ... Close Although that is certainly a credible alternative, there is reason to be skeptical about the willingness of circuits with longstanding traditions of permissive and in­clusive admis­sion of other-acts evidence to follow their stricter sister circuits. And it will certainly take time for other circuits to come around. The rulemaking pro­cess is slow, of course, taking more than two-and-a-half years from an Advisory Committee proposal to date of enactment. 271 271 See 28 U.S.C. §§ 2073–2074 (2012) (describing the procedure by which proposed rules become enacted, including the deadline for transmission and the effective date). ... Close But achieving judicial uniformity on a rule as controversial and ingrained as Rule 404(b) is likely to take far longer than that. The whole point of a codification of evidence rules is that they are uniform. And yet the current state of the law on one of the most important evidence rules is hardly that. Furthermore, even if all circuits were to ride the wave of the recent recalibration in Rule 404(b) analysis, the recent opinions may go too far in stating a total ban on the use of any other act that relies to any extent on a propensity infer­ence and in permitting defense stipulations to foreclose other-acts evidence in certain cases, as discussed above. 272 272 See supra notes 207–214 and accompanying text. ... Close Therefore, an amendment to the text of Rule 404(b) may indeed be the most efficient and effective method for refereeing the contemporary use of other-acts evidence in federal criminal cases, and the time may be right for the Advisory Committee to weigh in on the Rule 404(b) circuit split.

One amendment that would go beyond simply enshrining the re­quirements imposed in recent federal cases in the text of Rule 404(b) could provide a more elegant solution than the potential amendments outlined above, restoring Rule 404(b) to its exclusionary purpose without imposing rigid solutions like total propensity bans or active contest man­dates, and without adding troublesome and elusive new terminology to the text of Rule 404(b). Rule 404(b)(2) could be amended to require that the proper probative value of any other crime, wrong, or act admitted against a criminal defendant outweigh any unfair prejudice to that defendant likely to result from admission of the bad acts evidence. 273 273 The application of a more protective balance that favors criminal defendants in the Rule 404(b) context is not an untested concept. Both Virginia and Pennsylvania have enacted versions of Rule 404(b) that contain just such an approach to other-acts evidence. Pennsylvania’s rule provides as follows:
“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. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its po­tential for unfair prejudice.”
Pa. R. Evid. 404(b)(2). Virginia’s rule provides as follows:
“[E]vidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith. However, if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is ad­missible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.”
Va. Sup. Ct. R. 2:404 (emphasis added). In addition, Uniform Rule of Evidence 404(c) contains a similar heightened balancing test. Unif. R. Evid. 404(c) (1999). ... Close

The standard Rule 403 balancing test applies to the admission of all other acts under the existing version of Rule 404(b). Although Rule 403 serves as a basis for the exclusion of evidence, the balance it strikes favors admissibility by requiring that unfair prejudice “substantially outweigh[]” any probative value in order to exclude. 274 274 Fed. R. Evid. 403; see, e.g., United States v. Fallen, 256 F.3d 1082, 1091 (11th Cir. 2001) (“Rule 403 is an extraordinary remedy . . . ‘which should be used only sparingly since it permits the trial court to exclude concededly probative evidence.’” (quoting United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992))). ... Close An amendment that requires the probative value of other acts offered against a criminal defendant to outweigh the potential for prejudice would tip the scale in favor of exclu­sion, restoring a baseline that is consistent with the exclusionary intent of Rule 404(b)(1). 275 275 See Milich, supra note 9, at 789, 797–98 (noting the “diluted and vague expression of the illegitimate use of character evidence fares poorly . . . particularly when the balancing test is uneven—the evidence is excluded only if the illegitimate effects ‘substantially outweigh’ the probative value” and suggesting that courts reorient balancing to mitigate systemic prejudice). In Virginia, where this protective balancing is already in place, the criminal cases reflect a more circumspect approach to other-acts evidence. See, e.g., Commonwealth v. Rankin, 93 Va. Cir. 169, 173 (2016) (“The Court agrees with the Defense that such evidence [of a 2011 shooting] would be highly prejudicial to the Defendant and that any legitimate probative value of the evidence does not outweigh such prejudice.”); see also Pryor v. Commonwealth, 661 S.E.2d 820, 822 (Va. 2008) (finding it erroneous to allow videotape of a later drug transaction to be used to prove identity in connection with an earlier drug sale because even assuming the later transaction was relevant to corroborate the defendant’s visits to the location, its probative value could not overcome its prejudicial effect); Scates v. Commonwealth, 553 S.E.2d 756, 758–60 (Va. 2001) (reversing the burglary conviction in a case in which the prosecution introduced testimony that the defendant used credit cards to break into “homes” because there was no use of a credit card in the charged offense and the testimony prejudiced the defendant by suggesting multiple other offenses); Donahue v. Commonwealth, 300 S.E.2d 768, 773–74 (Va. 1983) (reversing the conviction as a result of trial court’s erroneous admission of defendant’s prior conviction for distribution of PCP to establish her “intent” to distribute drugs on the charged occasion when defense claimed only that drugs belonged to defen­dant’s husband). ... Close This amendment would appear within Rule 404(b)(2)—thus supplanting the Rule 403 test when bad acts are offered against the accused. The amendment would provide as follows:

(b) CRIMES, WRONGS, OR OTHER ACTS.

(1) Prohibited Uses. Evidence of a 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. 276 276 This amendment also could be coupled with an amendment moving the criminal notice provisions to a new and separate subsection. ... Close 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—but may not be admitted against a defendant in a criminal case unless its probative value outweighs its prejudicial effect to that defendant. 277 277 The Kansas Evidence Code includes a specific reference to its version of Rule 403 in its version of 404(b). Kan. Stat. Ann. § 60-455(b) (West 2016). Generally, express references to Rule 403 in any particular evidence rule seem ill-advised because such references are superfluous. Rule 403 applies unless it is specifically supplanted by another rule—such as the special balancing test provided for civil cases involving sexual assault. See Fed. R. Evid. 412. It should be noted, though, that Federal Rule of Evidence 609(a) does contain an express reference to the Rule 403 balancing test (for all witnesses other than the accused) to contrast it with the heightened balancing required for criminal de­fendants. Fed. R. Evid. 609(a). It could be argued that the same contrast should be emphasized in an amended Rule 404(b) that provided a more protective balancing test for criminal defendants. But a distinguishing factor is that Rule 609 contains four different admissibility tests in the same rule: automatic admissibility (subdivision (a)(2)), Rule 403 (subdivision (a)(1)(A)), probative value outweighs prejudicial effect (subdivision (a)(1)(B)), and a reverse Rule 403 test (subdivision (b)). Fed. R. Evid. 609(a)–(b). When Rule 609 was restyled, the drafters decided that it would be too confusing to specifically provide for the other three balancing tests, but leave a vacuum for the Rule 403 test. See Daniel J. Capra, Federal Rules of Evidence: 2017–2018 Edition 121 (2017). That same confusion is unlikely to exist in an amended Rule 404(b) as discussed in text. Therefore, the proposal in text does not set forth a Rule 403 balancing test when bad-acts evidence is offered in a civil case or against the government in a criminal case. Any question about continued Rule 403 applicability in such cases can be addressed in a committee note. ... Close

A more protective balancing test for criminal defendants could re­solve many longstanding failings in the application of Rule 404(b) with­out creating new struggles for courts and litigants that could flow from the alternative amendments discussed above. 278 278 Indeed, there is some support in the literature for an enhanced balancing in the Rule 404(b) context. See Frank, supra note 19, at 43 (proposing reverse balancing, among other amendments); Edward J. Imwinkelried, The Need to Amend Federal Rule of Evidence 404(b): The Threat to the Future of the Federal Rules of Evidence, 30 Vill. L. Rev. 1465, 1497 (1985) (predicting courts would adopt a restrictive approach to Rule 404(b) evidence at odds with the language of Rule 402 and Rule 403 and proposing addition of protective balancing to bring the Rule in line with pre-Rules federal opinions); Milich, supra note 9, at 799 (“A stepped up balancing test in Rule 404(b) would require that the state’s need for the evidence outweighs the policy that the presumption of innocence should remain intact whenever possible.”); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 140–41 (1989) (proposing an amendment to Rule 403 that would provide protective balancing of evidence offered against criminal defendants under Rules 404(b), 608(b), and 609(a)(1)). ... Close

A. A Silver Bullet

Providing criminal defendants with a more protective balancing test within the text of Rule 404(b) would resolve many of the problems in the traditional permissive approach to Rule 404(b) evidence in criminal cases. First and foremost, a more protective balancing test that favors ex­clusion would make clear once and for all that Rule 404(b) is not a rule of “inclu­sion” that provides for “presumptive admissibility” of other-acts evi­dence. As examined above, federal courts that routinely admit other-acts evidence consistently begin a Rule 404(b) analysis by emphasizing that the Rule is one of “inclusion” that expressly “permits” other-acts evi­dence. Courts like these have suggested that “404(b) evidence . . . should not lightly be excluded when it is central to the prosecution’s case” 279 279 United States v. Smith, 741 F.3d 1211, 1225 (11th Cir. 2013) (internal quotation marks omitted) (quoting United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003)). ... Close and that Rule 404(b) “admits evidence of other crimes or acts relevant to any issue in the trial, unless it tends to prove only criminal disposition.” 280 280 United States v. Geddes, 844 F.3d 983, 989 (8th Cir. 2017) (emphasis added) (internal quotation marks omitted) (quoting United States v. Oaks, 606 F.3d 530, 538 (8th Cir. 2010)). ... Close Directing district courts to exclude other-acts evidence offered against a criminal defendant unless its probative value for a proper noncharacter purpose is stronger than any prejudice likely to result would help to re­claim Rule 404(b) as the rule of “exclusion” it was intended to be. 281 281 Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 908 (explaining that other-acts evidence proffered by the prosecution in a criminal case should possess “substantial” noncharacter relevance). ... Close

Such a balancing test could assist with the problem of pure propensity uses for other-acts evidence without imposing a rigid pro­pensity prohibi­tion. By setting a higher standard for the admission of other-acts evidence against criminal defendants, a heightened balancing test would naturally encourage prosecutors and trial judges to articulate the probative value of other-acts evidence to ensure that it clears the higher hurdle set by a more protective balancing and that its admission survives appellate scrutiny. A more protective test also would demand that judges identify the type and magnitude of unfair prejudice likely to result from admission of other-acts evidence. Because the standard Rule 403 balancing test favors admission of other-acts evidence possessing any probative value, courts rarely devote significant analysis to the prejudice side of the equation following an in­cantation of permissible purposes under Rule 404(b). 282 282 See, e.g., Geddes, 844 F.3d at 990–91 (concluding, without analysis, that danger of unfair prejudice was “minimal” because the witness testified “only” to the defendant’s prior unrelated act of physical assault); Smith, 741 F.3d at 1225–26 (affirming admission of defendant’s prior drug possession convictions because they were probative of his intent, which he made a material issue by pleading not guilty, without analyzing likely unfair pre­judice to defendant). ... Close A more protective balancing test that requires pro­bative value to overpower unfair prejudice would necessitate a closer look at the particular prejudice in a specific case and would tilt the scales against admission of other-acts evi­dence that creates significant propen­sity concerns. 283 283 See supra section IV.B –.C. ... Close For example, in the ubiquitous federal drug prosecution in which the defendant merely denies engaging in the unlawful conduct, evidence of prior drug convictions undoubtedly creates significant risk of a prejudicial propensity use by the fact-finder. Any probative value that a trial court might find to show the defendant’s “intent” or “knowledge” would be overshadowed by the predictable dynamite effect of the prior misdeeds in suggesting the defendant’s tendency to commit drug of­fenses, thus dooming the evi­dence to exclusion.

While such a balancing test could alleviate the problem of other acts offered for pure propensity purposes, it would not impose a complete ban on the admission of other-acts evidence, the probative value of which may depend on some propensity reasoning. As discussed above, the gov­ern­ment should be permitted to prove a defendant’s prior acts of possession with intent to distribute drugs in cases in which the defendant admits possession of a distribution quantity of the same drug in a trial on similar charges, but testifies that he intended to retain it for personal use and not sell it. More than simply pleading “not guilty,” that defendant has injected a live dispute about his state of mind and intent into the case. The prose­cution needs evidence to resolve the dispute and to meet its high burden of proof, and alternative evidence to demonstrate state of mind (beyond the act itself that the defendant has already sought to explain away) will be difficult to obtain. In such a case, the probative value of prior intentional drug distribution to resolve the narrow issue of “intent” is strong and outweighs the prejudice to the defendant. As discussed above, ascertaining precisely when propensity inferences are at play is a slippery task, and commentators have argued that the use of a prior conviction to show intent in a case like this one does involve in­ferences about the defendant’s tendencies. 284 284 See Sonenshein, supra note 10, at 257 n.283. ... Close Even assuming that it does, the government should be per­mitted to use the evidence to combat such an active dispute of intent. While a rigid propensity ban would jeo­pardize the government’s ability to call on evidence of prior convictions in this scenario, a flexible but protective balancing test would continue to permit it.

As this discussion demonstrates, other-acts evidence could gain pro­bative value in a trial in which defendants dispute certain elements of the charges against them. A more protective balancing test would thus preserve the importance of a defendant’s “active contest” of particular elements as emphasized in recent circuit precedent. But, it would do so in a flexible manner that does not rigidly require a court to define and iden­tify “active contest.” Further, adoption of a protective balancing test instead of an “active contest” mandate would preserve the trial court’s discretion in dealing with defense offers to stipulate to certain points, as suggested by the Supreme Court in Old Chief. 285 285 See supra notes 246–252 and accompanying text. ... Close While defense offers to stipulate would undoubtedly affect probative value under a balancing test, they would not necessarily be dispositive due to the government’s need to present its case in a compelling way. To be sure, a more protect­ive balanc­ing test could still permit the government to use other-acts evidence even in the acknowledged absence of any “active” contest. As explained by the Seventh Circuit in Gomez, when a criminal defendant pleads not guilty to a specific intent charge, intent is “automatically” at issue. 286 286 United States v. Gomez, 763 F.3d 845, 858–69 (7th Cir. 2014). ... Close While that does not necessarily mean that other-acts evidence is “automatically” admissible, it does leave a trial judge free to admit such evidence to assist the government in proving intent even when there is no “active contest” or testimony about intent at trial, if the court deter­mines that the government’s need for the evidence to meet its burden of proof is strong enough to overcome prejudice to the defendant. While a mechanical “active contest” mandate would threaten to undermine the government’s ability to offer other-acts evidence in specific intent cases, a balancing test would continue to allow trial judges to assess the need for such evidence on a case-by-case basis. Thus, the more protective balancing test would do much of the work that an “active contest” limitation would do, without adding categorical and potentially confusing language about “active contest” to the text of the rule.

Finally, a more protective balancing test that favors only criminal defendants would continue to permit criminal defendants to offer “reverse 404(b)” evidence without any new obstacles like an “active contest” requirement or propensity ban in the way. Unlike other poten­tial amendments, this balancing approach would also leave civil cases un­touched. There is no demonstrated need for a change in the application of Rule 404(b) or to the standard Rule 403 balancing in civil cases, or in cases in which the defendant offers evidence of other acts. The reason for a new, more protective balancing test is to address the well-documented prejudice suffered uniquely by criminal defendants when their character is attacked by bad-acts evidence. Singling out criminal defendants for special protections is appropriate and time honored in light of the high stakes for defendants facing the prosecutorial power of the government. The case has not been made that similar abuses are rou­tine when other-acts evidence is offered in civil cases or in the rare case in which the criminal defendant seeks to offer other-acts evidence. Further­more, the standard Rule 403 balancing is more than adequate to address any concerns in these circumstances in which the liberty of the opponent of the evidence is not in jeopardy. The proposed amendment, therefore, seeks to capture the trend in some federal courts to impose a more rig­orous analysis of bad-acts evidence when it is offered against crim­inal defendants. 287 287 There have been longstanding concerns about the Huddleston approach to proof of other acts as a matter of conditional relevance under Rule 104(b). Some have argued for a stronger role for the judge in regulating the admissibility of other-acts evidence and a tougher standard of proof for other acts. Although some states have required preliminary findings by the trial judge that the defendant committed the other act and a higher standard of proof, see, e.g., Minn. R. Evid. 404(b), federal courts treat the issue as a jury question requiring only proof by a preponderance pursuant to the Bourjaily and Huddleston line of cases. Adopting a more protective balancing test administered by the trial judge pursuant to his or her Rule 104(a) authority to determine admissibility could achieve the tighter judicial control over other-acts evidence that many have sought. Even if the government could satisfy the low preponderance threshold for showing the defen­dant’s commission of the other act to justify submission to the jury, a balancing test that favors exclusion would afford the trial court a strong and distinct basis for excluding the evidence. ... Close

One of the principal benefits of an amended balancing test is that it eschews rigid and mechanical solutions that are ill-suited to Rule 404(b). On the other side of that coin, a flexible balancing test by definition would leave significant discretion to trial judges. This is likely to be one of the chief criticisms of a proposal to add a new balancing test to Rule 404(b). A heightened balancing test cannot entirely control innate judi­cial tendencies to admit other-acts evidence permissively. There is reason to expect that an amendment adding a protective balancing test to Rule 404(b) would have significant effects, however. Entering the stage some forty-plus years after the adoption of the Federal Rules of Evidence, such an amendment would signal an unmistakable change in the status quo that would be impossible for courts to ignore. Furthermore, a detailed Advisory Committee Note accompanying an amended balancing test would en­hance its operation by emphasizing the purposes for the ad­dition to the rule and highlighting the shortcomings in the traditional approach that the amendment seeks to correct. Such a committee note could provide, as follows:

 

Committee Note

Rule 404(b)(2) has been amended to require that the proper probative value of any crime, wrong, or other act admitted against a criminal defendant outweigh any unfair prejudice to that defendant. This is the same balancing test in favor of a criminal defendant prescribed by Rule 609(a)(1)(B). No change is being made to the application of Rule 404(b) or to the standard Rule 403 balancing test in civil cases, or in cases where the criminal defendant offers evidence of other acts. The more protective balancing test for criminal defendants is weighted in favor of exclusion and clarifies that Rule 404(b) is not a rule of “inclusion” as some federal opinions have stated. In evaluating other-acts evidence pursuant to this amended bal­ancing test, trial judges should carefully consider how a proffered other act is probative for a proper purpose, in order to guard against the character reasoning outlawed by Rule 404(b)(1). For example, where a defendant accused of federal drug crimes simply denies commission of the underlying acts, prior drug offenses offered to prove “intent” or “knowledge” have minimal probative value, and it is very likely that the prejudice by way of a propensity inference outweighs any limited probative value. In determining the probative value of other-acts evidence, trial judges should consider which issues are genuinely disputed in the case. While a defendant’s active contest of an element to which other act evidence is relevant will increase the probative value of other act evidence, an active contest is not always required and a defense stipulation is not necessarily dispositive of admissibility. The amended balancing test requires a weighing of legitimate probative value against likely prejudicial effect. Trial judges should carefully evaluate the effect of any crime, wrong, or other act of a defendant on the fact-finder and assess the likelihood that such evidence will detract from fair consideration of charged offenses. All of these factors should be considered in applying the more protective balancing test to other-acts evidence offered against a defen­dant in a criminal case to ensure that the government’s legiti­mate need for the evidence outweighs the unfair prejudice to the defendant from the jury’s consideration of prior bad acts.

Furthermore, an Advisory Committee Note would be particularly im­portant in addressing the problem of “inextricably intertwined” acts by a defendant that evade Rule 404(b) analysis altogether. The regular Rule 403 balancing that applies to all evidence would continue to apply to acts of the criminal defendant that are not “other acts” regulated by Rule 404(b), but a heightened balancing test would protect criminal defend­ants against admission of “other acts.” 288 288 Mueller & Kirkpatrick, supra note 18, § 6:42 (noting a regular Rule 403 balancing favors admissibility, while the heightened balancing test offered to criminal defendants under Rule 609(a) favors exclusion). ... Close Thus, there would be even more at stake in the line drawing exercise than there is now. While a more pro­tective balancing test may make some trial judges more cautious in ap­plying the “inextricably intertwined” doctrine to justify avoidance of the protective balancing test, federal judges already inclined to admit a defendant’s prior misdeeds could be even more motivated to classify them as “inextricably intertwined” with the charged offense to avoid the new heightened balancing test. An Advisory Committee Note could address this concern, cautioning that:

Of course, Rule 404(b) and the amended balancing test for criminal defendants apply only to evidence of “other” crimes, wrongs, or acts. Trial judges must, therefore, determine which acts are “other” or extrinsic to the charged offense, necessi­tating Rule 404(b) analysis, and which are “intrinsic” to the charged offense and free from Rule 404(b) scrutiny. Courts should not circumvent the more protective balancing test by attaching vague and conclusory labels, such as “inextricably intertwined,” to a defendant’s other acts. In place of employing conclusory labels, trial judges should explain how an act is so connected to the charged offense so as to avoid Rule 404(b) treatment. Because appropriate line drawing in this context is impossible to capture with precision, close calls in classifying a defendant’s acts should be resolved in favor of Rule 404(b) ap­plication—especially given the importance of filtering bad-acts evidence through the new and more protective balancing test. 289 289 Commentators have suggested standards for excusing certain acts from the coverage of Rule 404(b) that also could be incorporated into a committee note. For exam­ple, acts that are “part and parcel of the charged offense” or the exclusion of which would “render the testimony about the charged crime linguistically or psychologically incom­prehensible” could be exempt from Rule 404(b) analysis. See Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, §§ 903–904 (quoting Imwinkelried, The Second Coming, supra note 65, at 725). The “direct/indirect” distinction examined in the text above also could be added to a committee note rather than being enshrined in a rule’s text. Of course, the difficulties in administering such a distinction would remain. ... Close

At first blush, prosecutors may assume that an amendment that adds a more protective balancing test for the admission of other-acts evidence against a criminal defendant represents a “pro-defendant” modification. Indeed, some may oppose the addition of a protective balancing test due to concern that it would place an unjust obstacle in the path of prose­cutors who must prove criminal charges beyond a reasonable doubt. But a more protective balancing test in reality could represent a more neutral amend­ment than many of the reforms suggested by recent federal precedent in the Seventh and Third Circuits. 290 290 See supra section III.C. ... Close A more protective bal­ancing test for criminal defendants would preserve the government’s ability to utilize other-acts evidence to prove intent or modus operandi, even though that use may rely to some extent on propensity inferences and even without “active contest” by the defendant. Unlike the recent circuit precedent sug­gesting that a criminal defendant can foreclose prosecutorial use of other-acts evidence by offering stipulations, 291 291 See Gomez, 763 F.3d at 857 (suggesting that a defense stipulation could foreclose government use of other-acts evidence). ... Close a protective balancing test would maintain a trial judge’s discretion to balance the competing pros and cons of the evidence even in the face of a stipulation. An amendment could serve to curtail the “inextricably intertwined” doctrine and to push more evidence into the heightened balancing test. However, the acts of a crimi­nal defendant that are truly so close to the charged offense as to be “inextricably intertwined” with it will have no trouble clearing even the hurdle created by the new bal­ancing test. Importantly, the amendment would not be a true reverse Rule 403 test and would not require the proba­tive value of an “other act” to substantially outweigh any potential prejudice. 292 292 See Frank, supra note 19, at 43 (proposing amendments to Rule 404(b) that would, in part, require probative value to “substantially outweigh[] its prejudicial effect”). Of course, it is surely an option for the Advisory Committee to consider a reverse 403 balancing test for bad-acts evidence offered against a criminal defendant. Federal Rules of Evidence 412 and 703 contain true reverse 403 balancing tests. See Fed. R. Evid. 412(b)(2) (allowing evidence of a victim’s sexual behavior or predisposition in civil cases involving alleged sexual misconduct only if its probative value substantially outweighs harm to any victim or unfair prejudice to any party); Fed. R. Evid. 703 (allowing an expert witness to disclose inadmissible basis for an opinion only when the probative value in helping the jury evaluate the expert’s opinion substantially outweighs prejudicial effect). Federal Rule of Evidence 609(b) employs a heightened reverse 403 balancing test for impeaching convictions that are more than ten years old. Fed. R. Evid. 609(b) (excluding convictions after ten years unless the probative value “supported by specific facts and circumstances substantially outweighs its prejudicial effect”). This reverse 403 test is designed to stack the deck firmly against admissibility and to exclude the relevant evidence in all but the rarest of cases. The proposed amendment to Rule 404(b) is designed to reinstate the Rule as one of exclusion and to tip the scale in favor of criminal defendants who suffer significant prejudice from the admission of their prior bad acts. Still, other-acts evidence should re­main available to the prosecution in cases in which there is genuine and proper proba­tive value, notwithstanding the risk of prejudice. Thus, a true reverse 403 balancing risks swing­ing the pendulum too far in the other direction. Furthermore, as a matter of practi­cality, such an amendment is unlikely to find its way through the rulemaking process. The Justice Department—with a voting member on the Advisory Committee and on the Judicial Conference Committee on Rules of Practice and Procedure—is likely to oppose vigorously any attempt to completely reverse the balancing test from which it has benefited for forty years. Of course, the Department is also likely to oppose even the modest shift in the bal­ancing test that is proposed in this Article. But there is at least some hope that the more modest shift might be seen as a compromise position and as a way to address the strong trends in the case law favoring more rigorous application of Rule 404(b). Such a com­promise would be not unlike that which was reached in Congress when Rule 609(a)(1) was enacted to provide a modest protection for criminal defendants. For an account of that compromise, see Bellin, supra note 11, at 304–07. ... Close It would simply require the scale to tip in favor of the probative value. 293 293 Another drafting alternative would be to include a balancing test that excludes other-acts evidence offered against a criminal defendant whenever probative value is outweighed at all by unfair prejudice—even if the probative value is not substantially outweighed. State analogues to Federal Rule of Evidence 404(b) in Massachusetts, Minnesota, and Tennessee modify the Rule 403 balancing test traditionally applicable to other-acts evidence in this way. See Mass. Guide to Evid. § 404(b)(2) (“However, evidence of other bad acts is inadmissible where its probative value is outweighed by the risk of un­fair prejudice to the defendant, even if not substantially outweighed by that risk.”); Minn. R. Evid. 404(b) (admitting other-acts evidence only if “the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant”); Tenn. R. Evid. 404(b) (“The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.”). The “probative value is outweighed by the prejudice” test is of course only marginally different from the test advocated in this Article and appears to provide some additional protection to criminal defendants. See Commonwealth v. Crayton, 21 N.E.3d 157, 176 n.27 (Mass. 2014) (“[B]ecause ‘other bad acts’ evidence is ‘inherently prejudicial,’ it makes sense to impose a more exacting standard on its admissibility than the standard applicable to other evidence.” (citations omitted) (quoting Commonwealth v. Johnson, 617 N.E.2d 1040, 1045 (Mass. App. Ct. 1993))); Commonwealth v. Christie, 53 N.E.3d 1268, 1271 n.2 (Mass. App. Ct. 2016) (“Had the judge had the benefit of the [more protective balancing test] he may, of course, have concluded that the challenged evidence was not admissible.”). But the difference between the two balancing tests is marked in terms of the signal that is sent. The balancing test advocated in this Article makes clear that Rule 404(b) is a rule of exclusion. Under the test adopted by Massachusetts, Minnesota, and Tennessee, Rule 404(b) remains a rule of inclusion. Moreover, adding the “probative value is outweighed by the prejudice” test to Rule 404(b) is not ideal as a matter of rule­making, because it would be the only test with that balance in the Federal Rules of Evidence. All things being equal, it is a better solution to add a balancing test that is al­ready found in the Federal Rules. See infra section V.B. ... Close Any act that could legitimately be characterized as “in­extricably intertwined” because it constitutes part of the charged crime will be more probative than pre­judicial by definition.

B. Protective Balancing for the Criminal Defendant: Lessons from Rule 609(a)

Another advantage of a more protective balancing test is that it would avoid loading up the familiar Rule 404(b) standard with new terminology foreign to the Federal Rules of Evidence, such as “propen­sity inference,” “active contest,” “direct,” and “indirect,” that would re­quire interpreta­tion and invite litigation. To the contrary, a modified version of the Rule 403 balancing test that offers increased protection to criminal defendants constitutes a familiar and well-understood standard already embodied in Rule 609(a)(1)(B) of the Federal Rules of Evidence. This will enable fed­eral courts to deploy this familiar balancing within the Rule 404(b) context.

Rule 609 authorizes certain prior convictions of a witness to be ad­mit­ted to attack the witness’s character for truthfulness, that is, to suggest that the witness has an untruthful character and so is lying on the stand. 294 294 Rule 609(a)(1) covers felony convictions that do not involve dishonesty or false statement. Fed. R. Evid. 609(a)(1). Subdivision 609(a)(2) covers convictions that involve dishonesty or false statement. Fed. R. Evid. 609(a)(2). Subdivision 609(b) covers “old” (and presumably less probative) convictions. Fed. R. Evid. 609(b). The balancing test sug­gested in this Article for Rule 404(b) is identical to the test provided for impeaching crim­inal defendant-witnesses with recent convictions that did not involve dishonesty or false statement. That test is found in Rule 609(a)(1)(B). ... Close Due to the potential for unfair prejudice and bad-character rea­soning when the prior felony convictions of testifying criminal defen­dants are offered under Rule 609(a)(1), the Rule provides that felony convictions that do not involve dishonesty or false statement 295 295 If the prior conviction involves dishonesty or false statement, it is automatically admissible against all witnesses in all cases. Fed. R. Evid. 609(a)(2). ... Close may be admitted only if their probative value with respect to dishonesty outweighs any prejudicial effect to the defendant. 296 296 Fed. R. Evid. 609(a)(1)(B). ... Close This more protective balancing test has resulted in a number of cases in which non-falsity-based convic­tions offered for im­peachment have been excluded or have been found on appeal to have been erroneously admitted. That is especially likely when the conviction offered for impeachment is similar to the crime charged, or when the con­viction is for conduct that is especially inflam­matory. 297 297 See, e.g., United States v. Caldwell, 760 F.3d 267, 283–85 (3d Cir. 2014) (finding a prior felon-firearm conviction could not be admitted to impeach the accused in a felon-firearm prosecution); United States v. Kemp, 546 F.3d 759, 764 (6th Cir. 2008) (finding error to admit prior convictions for taking indecent liberties with a minor in a prosecution for felon–firearm possession); United States v. Brackeen, 969 F.2d 827, 831 (9th Cir. 1992) (finding that, in a bank robbery prosecution, the trial judge excluded the defendant’s prior bank robbery convictions under Rule 609(a)(1), but improperly admitted them under Rule 609(a)(2)); United States v. Sanders, 964 F.2d 295, 298 (4th Cir. 1992) (finding error to admit evidence of prior convictions for assault and contraband posses­sion in a prosecution for assault with a dangerous weapon); United States v. Bagley, 772 F.2d 482, 486–88 (9th Cir. 1985) (finding error to admit prior robbery convictions in a prosecution for bank robbery); United States v. Martinez, 555 F.2d 1273, 1277 (5th Cir. 1977) (finding error to admit prior narcotics conviction in a prosecution for conspiracy to distribute cocaine). ... Close This is not to say that results have been absolutely uniform or that criminal defendants have received absolute protection. 298 298 See Sanders, 964 F.2d at 300 (holding that the admission of a prior conviction inadmissible under Rule 609(a)(1) was harmless error as to the possession of contraband count); see also Bellin, supra note 11, at 319–35 (suggesting that federal courts have failed to apply this balancing as carefully as Congress intended). ... Close The na­ture of any balancing test is that there is room for play and room for unjust results. But it is to say that tipping the balancing test has resulted in more protection for criminal defendants, and that federal litigants and courts are familiar with this pro­tective balancing test and could readily adapt it to the Rule 404(b) context.

Indeed, there is a certain symmetry to incorporating the same balanc­ing test in favor of criminal defendants in both Rules 609 and 404(b). 299 299 See Milich, supra note 9, at 797–98 n.48 (suggesting a need to apply similar balancing to other-acts evidence and prior convictions offered to impeach under Rule 404(b)); Ordover, supra note 278, at 138, 140–41 (same). ... Close Like Rule 609(a), Rule 404(b) seeks to walk a fine line in crim­inal cases. It aims to protect against prejudice from past acts that may be utilized by a jury to assume that a criminal defendant must have com­mitted the charged offense if he did something similar on another occasion, while at the same time permitting evidence of other acts that shed light on im­portant issues in the case. Recognizing the strong like­lihood of prejudice to a criminal defendant from evidence of past misdeeds, Rule 609(a)(1) keeps them out unless their probative value is actually stronger than that potential for prejudice. 300 300 Mueller & Kirkpatrick, supra note 18, § 6:45 (noting the Rule 609 “framers made the judgment that prior convictions are especially risky for criminal defendants, and the language of Rule 609(a)(1) is cast in favor of caution”). ... Close When the prejudice to criminal defendants in the Rule 404(b) and Rule 609(a)(1) contexts is similar, a similar protective test in favor of a criminal defendant would seem warranted in both cir­cumstances. Arguably, it may be even more important to provide more protection to a criminal defendant in the Rule 404(b) context than in the already-recognized impeachment con­text, because a criminal defendant always has the option not to testify and may control the admission of prior convictions for impeachment by staying off the stand. 301 301 See id. (noting criminal defendants with prior records frequently stay off the stand to avoid damaging admission of their prior convictions). ... Close A defendant who wishes to plead not guilty may have less choice about the defense she offers and ordinarily has less con­trol over the application of Rule 404(b) to ad­mit her past misdeeds. 302 302 Id. § 4:28 (“[F]ew categories of evidence bring greater risk of prejudice to the accused . . . .”). ... Close Accordingly, amending Rule 404(b) to add an already-established pro­tective balancing test in favor of criminal defend­ants would import an existing and well-understood standard already in the Federal Rules of Evidence into a related arena.

Conclusion

Rule 404(b) is the most litigated Federal Rule of Evidence, 303 303 Imwinkelried et al., Courtroom Criminal Evidence, supra note 3, § 901 (stating that Rule 404(B) “has generated more published opinions than any other subsection of the rules”). ... Close crop­ping up routinely in criminal cases, in which jury trials continue to be a mainstay. Although Rule 404(b)(1) states an exclusionary rule, cau­tioning against the use of evidence of “other” crimes, wrongs, or acts to suggest a person’s tendencies to behave in a particular manner, it is tempered by exceptions in Rule 404(b)(2), which permit the use of such evidence for other purposes. 304 304 See Fed. R. Evid. 404(b). ... Close The most common purposes listed in Rule 404(b)(2) are to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 305 305 Fed. R. Evid. 404(b)(2). ... Close It is an open secret that federal courts have traditionally played fast and loose with other-acts evidence, listing all proper purposes in justifying admis­sibility and allow­ing past misdeeds of criminal defendants to come before juries on a routine basis. The devastating effect of such other-acts evidence on juries is well-documented.

Recently, the Seventh, Third, and Fourth Circuits have issued opin­ions seeking to restore Rule 404(b) as a rule of exclusion. These opinions caution against use of any prior act that depends for its probative value upon inferences about a defendant’s “propensity” to conduct him or her­self in relevant ways. They have emphasized the importance of some “active” dispute launched by the defense to bring prior acts into play. Fi­nally, these courts have worked to funnel all other-acts evidence through the Rule 404(b) gauntlet by eliminating or restricting significantly the doc­trine of “inextricably intertwined” acts that may be admitted as part of proving the charged offense without application of Rule 404(b). All the while, several federal circuit courts continue to treat Rule 404(b) as a “rule of inclusion.”

In order to resolve the conflict in the circuits over the proper handling of other-acts evidence in federal criminal cases, the time may be ripe for an amendment to Federal Rule of Evidence 404(b). Although the limits imposed by the Seventh, Third, and Fourth Circuits present inter­esting opportunities for modifying the text of the Rule, each of those alter­natives is rife with difficulties. Rule 404(b)’s history is one of case-by-case determinations that eschew mechanical solutions. An amendment that could change the tune in the traditional approach to other-acts evidence, without cluttering Rule 404(b) with foreign terminology that invites costly litigation, would be a new balancing test that favors criminal defen­dants. Instead of relying on the standard Rule 403 balancing that admits other-acts evidence so long as its probative value isn’t “substantially outweighed” by unfair prejudice, an amended rule could demand that the probative value of other-acts evidence admitted against a criminal defend­ant outweigh any potential for prejudice. By reversing the scale to favor exclusion, such an amendment could serve the important goals of the recent Seventh, Third, and Fourth Circuit precedent in a flexible manner consistent with the history and purpose of Rule 404(b).