EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, January 30, 2013

10 Days Late: SDNY Finds 10 Days Advance Notice Sufficient For Rule 404(b) Purposes

Federal Rule of Evidence 404(b)(2) provides that character evidence

may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:  

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

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

So, how much notice is reasonable notice? Let's take a look at the recent opinion of the United States District Court for the Southern District of New York in United States v. Filippi, 2013 WL 208919 (S.D.N.Y. 2013).

In Filippi, Robert Burke and other defendants were charged with conspiracy to distribute and possess with intent to distribute one hundred or more marijuana plants and with distribution and possession with intent to distribute one hundred or more marijuana plants. Prior to trial, Burke moved to compel early disclosure of evidence of prior bad acts and uncharged criminal conduct. Specifically, Burke sought "early disclosure of evidence of prior bad acts and uncharged criminal conduct so that he c[ould] make the appropriate motions in limine to exclude such evidence."

The Southern District of New York, however, denied the motion, finding that 

"Courts in this Circuit have routinely found that at least ten business days provides reasonable notice to a defendant under Rule 404(b)." United States v. Ojeikere, 299 F.Supp.2d 254, 257 (S.D.N.Y.2004) (citing cases). The Government represents that it is aware of its obligations under Rule 404(b) and intends to provide notice of the Rule 404(b) evidence it intends to introduce fourteen days before the beginning of trial....Burke provides no basis for the Court to diverge from the standard practice. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/01/federal-rule-of-evidence-404b2provides-that-character-evidence-may-be-admissible-for-another-purpose-such-as-proving-mo.html

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