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

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

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

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

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