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John Byrne of Leon Cosgrove.  Courtesy photo John Byrne of Leon Cosgrove. Courtesy photo

Of all the Federal Rules of Evidence, Rule 404(b) may well be the most cited. Any lawyer who practices federal criminal law is very familiar with the rule. On Dec. 1, 2020, the Supreme Court adopted an amendment to Rule 404(b). Given the importance of the rule in federal criminal practice, lawyers need to know what’s new about it.

Before getting into the amendment itself, we need to set the stage. In federal criminal cases, the government can’t offer so-called “propensity” evidence—evidence that tends to show that, because the defendant also did some other bad thing one time, he must have committed the charged crimes (i.e., “We know the defendant did it because he’s done it before”). But the government may offer evidence of other crimes, wrongs or acts for nonpropensity purposes. Rule 404(b) itself provides a list of acceptable nonpropensity purposes. By way of example, there is the nonpropensity purpose of “identity.” Specifically, in a case where the charged crime was committed in a special way (i.e., a “signature crime”) and the defendant denies he committed the charged crime, the government can offer evidence that the defendant had, on some other occasion, committed a crime in that same special way. For example, in a case where the defendant is accused of robbing a bank while dressed like Captain America—and the defendant denies that he was the person in the costume—the government could offer evidence that, on some other occasion, the defendant robbed a bank while dressed like Captain America.

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