EvidenceProf Blog

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

Thursday, January 31, 2013

Did You Notice That?: Western District of Virginia Details Notice Obligation Under Rule 404(b)

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.

In other words, Rule 404(b)(2) contains a pre-trial notice requirement, pursuant to which the prosecution has a certain notice obligation when the defendant makes a relevant request. But what is the exact nature of that obligation? Let's take a look at the opinion of the United States District Court for the Western District of Virginia in United States v. Powell, 2007 WL 1839743 (W.D.Va. 2007).

In Powell, Gregory Powell was charged with a variety of offenses related to a scheme to obtain loans from federally insured banks under false pretences. Before trial, Powell requested "[a]ll evidence which the government may introduce pursuant to Federal Rule of Evidence 404(b)." In response, the Western District of Virginia noted that

As Rule 404(b) states, however, a defendant is not entitled to the evidence itself; instead, a defendant is only entitled to "the general nature" of that evidence that the Government intends to introduce at trial. Additionally, Defendant points to no other legal authority that would entitle him to this evidence. 

Accordingly, the court found that "[t]o the extent Defendant's request complies with Rule 404(b), that part of the motion is GRANTED; to the extent it does not, that part of the motion is DENIED."

On other words, under Rule 404(b)(2), upon the defendant's request, the prosecution would have to disclose that intends to present "[evidence of prior crime/wrong/act X] to prove [permissible purpose]." But it would not have to disclose the specific evidence that it seeks to introduce to prove the prior crime/wrong act such as a deposition, record of conviction, etc.



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