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

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

But the Third Circuit recently emphasized that there is more to the first component of the Huddleston test than simply finding a ground in Rule 404(b) - such as motive - to which to stake the evidence, suggesting that the first...