Notice under MRE 404(b)

In United States v. Lindsey, __ F.3d __ (8th Cir. Jan. 9, 2013) (Nos. 11–3485, 11–3513), the court found that notice of intent to use some 404(b) evidence was timely and reasonable. The notice was given twice, a year before trial and again earlier than 30 days from trial.

In assessing the reasonableness of the notice the court “considered a three-factor test, whicn required that:

“the prosecutor … provide reasonable notice in advance of trial … of the general nature of any such evidence it intends to introduce at trial.” Fed.R.Evid. 404(b). Factors to consider for whether notice was reasonable include: (1) “when the government could have learned … of the evidence through timely preparation for trial; (2) … prejudice to [the] defendant from lack of time to prepare; and (3) how significant the evidence is to the government’s case.”

Lindsey, __ F.3d at __ (footnote omitted) (citing United States v. Green, 275 F.3d 694, 701-02 (8th Cir. 2001) (government’s printout of the arrest record four months before trial and supplemented the information as it became available,” was sufficient, as well as “[n]otice given one week before trial was reasonable.”)).

The court determined that the notice did not have to provide the basis for admission. In my discovery requests I always ask for specific information and also a basis for admission. Typically the prosecutor early on will make the incantation in citing the non-exclusive list of reasons in 404(b). This is why I think it important to make a motion in-limine prior to trial. Such a motion forces the prosecutor to be more precise with the reason for the evidence and also how it is relevant.

[T]his Court has cautioned that we do not approve “of broad talismanic incantations of words such as intent, plan, or modus operandi, to secure the admission of evidence of other crimes or acts by an accused at a court-martial under Mil.R.Evid. 404(b)”; and we have expressed “concern . . . with the dangers in admitting such evidence even if it meets the requirements of Mil.R.Evid. 404(b). See Mil.R.Evid. 403.” United States v. Ferguson, 28 M.J. 104, 109 (C.M.A. 1989) (alteration in original) (quoting United States v. Brannan, 18 M.J. 181, 185 (C.M.A. 1984)); see also Schroder, 65 M.J. at 58 (“[T]here is a risk with propensity evidence that an accused may be convicted and sentenced based on uncharged conduct and not the acts for which he is on trial”).

United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010).

h/t Federal Evidence Review.