2020-2021 Updates to the Federal Rules of Evidence

SUPREME COURT

OF THE UNITED STATES

Proposed amendments to the Federal Rules of Evidence, Rule 404, absent contrary Congressional action

Effective December 1, 2020

Honorable Nancy Pelosi

Speaker of the House of Representatives

Washington, DC 20515

Dear Madam Speaker:

I have the honor to submit to the Congress an amendment to the Federal Rules of Evidence that has been adopted by the Supreme Court of the United States pursuant to Section 2072 of Title 28, United States Code.

Accompanying the amended rule are the following materials that were submitted to the Court for its consideration pursuant to Section 331 of Title 28, United States Code: a transmittal letter to the Court dated October 23, 2019; a redline version of the rule with committee note; an excerpt from the September 2019 report of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States; and an excerpt from the May 2019 report of the Advisory Committee on Evidence Rules.

Sincerely,/s/ John G. Roberts, Jr.

Honorable Michael R. Pence

President, United States Senate

Washington, DC 20510

Dear Mr. President:

I have the honor to submit to the Congress an amendment to the Federal Rules of Evidence that has been adopted by the Supreme Court of the United States pursuant to Section 2072 of Title 28, United States Code.

Accompanying the amended rule are the following materials that were submitted to the Court for its consideration pursuant to Section 331 of Title 28, United States Code: a transmittal letter to the Court dated October 23, 2019; a redline version of the rule with committee note; an excerpt from the September 2019 report of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States; and an excerpt from the May 2019 report of the Advisory Committee on Evidence Rules.

Sincerely,/s/ John G. Roberts, Jr.

ORDER OF APRIL 27, 2020

1. The Federal Rules of Evidence are amended to include an amendment to Rule 404.

[See infra pp. ___ ___ ___.]

2. The foregoing amendment to the Federal Rules of Evidence shall take effect on December 1, 2020, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.

3. THE CHIEF JUSTICE is authorized to transmit to the Congress the foregoing amendment to the Federal Rules of Evidence in accordance with the provisions of Section 2074 of Title 28, United States Code.

PROPOSED AMENDMENT TO THE FEDERAL RULES OF EVIDENCE

Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts

* * * * *

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

(3) Notice in a Criminal Case In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial—or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, DC 20544

DAVID G. CAMPBELLCHAIRS OF ADVISORY COMMITTEES
CHAIR
MICHAEL A. CHAGARES
REBECCA A. WOMELDORFAPPELLATE RULES
SECRETARY
DENNIS R. DOW
BANKRUPTCY RULES
JOHN D. BATES
CIVIL RULES
RAYMOND M. KETHLEDGE
CRIMINAL RULES
DEBRA A. LIVINGSTON
EVIDENCE RULES

October 23, 2019

MEMORANDUM

TO:Scott S. Harris
Clerk, Supreme Court of the United States
FROM:Honorable David G. Campbell
RE:Summary of Proposed Amendments to the Federal Rules

This memorandum summarizes proposed amendments to the Rules of Appellate, Bankruptcy, and Civil Procedure, and the Rules of Evidence, submitted for the Supreme Court’s review. Each proposed amendment was unanimously approved by the relevant advisory committee as well as the Committee on Rules of Practice and Procedure. The Judicial Conference of the United States approved these amendments on September 17, 2019. If adopted by the Court and transmitted to Congress by May 1, 2020, these amendments will take effect on December 1, 2020 absent congressional action.

I. Federal Rules of Appellate Procedure 35 and 40

The proposed amendments to Rules 35 (En Banc Determination) and 40 (Petition for Panel Rehearing) establish length limits for responses to petitions for rehearing. The existing rules limit the length of petitions for rehearing, but do not restrict the length of responses to those petitions. The proposed amendments also change the term “answer” in Rule 40(a)(3) to “response,” paralleling the terms used in Rule 35.

PROPOSED AMENDMENTS TO THE FEDERAL RULES OF EVIDENCE

<< FRE Rule 404 >>

Rule 404. Character Evidence; Other Crimes, Wrongs or Acts

* * * * *

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial—or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

Committee Note

Rule 404(b) has been amended principally to impose additional notice requirements on the prosecution in a criminal case. In addition, clarifications have been made to the text and headings.

The notice provision has been changed in a number of respects:

• The prosecution must not only identify the evidence that it intends to offer pursuant to the rule but also articulate a non-propensity purpose for which the evidence is offered and the basis for concluding that the evidence is relevant in light of this purpose. The earlier requirement that the prosecution provide notice of only the “general nature” of the evidence was understood by some courts to permit the government to satisfy the notice obligation without describing the specific act that the evidence would tend to prove, and without explaining the relevance of the evidence for a non-propensity purpose. This amendment makes clear what notice is required.

• The pretrial notice must be in writing—which requirement is satisfied by notice in electronic form. See Rule 101(b)(6). Requiring the notice to be in writing provides certainty and reduces arguments about whether notice was actually provided.

• Notice must be provided before trial in such time as to allow the defendant a fair opportunity to meet the evidence, unless the court excuses that requirement upon a showing of good cause. See Rules 609(b), 807, and 902(11). Advance notice of Rule 404(b) evidence is important so that the parties and the court have adequate opportunity to assess the evidence, the purpose for which it is offered, and whether the requirements of Rule 403 have been satisfied—even in cases in which a final determination as to the admissibility of the evidence must await trial. When notice is provided during trial after a finding of good cause, the court may need to consider protective measures to assure that the opponent is not prejudiced. See, e.g., United States v. Lopez–Gutierrez, 83 F.3d 1235 (10th Cir. 1996) (notice given at trial due to good cause; the trial court properly made the witness available to the defendant before the bad act evidence was introduced); United States v. Perez–Tosta, 36 F.3d 1552 (11th Cir. 1994) (defendant was granted five days to prepare after notice was given, upon good cause, just before voir dire).

• The good cause exception applies not only to the timing of the notice as a whole but also to the timing of the obligations to articulate a non-propensity purpose and the reasoning supporting that purpose. A good cause exception for the timing of the articulation requirements is necessary because in some cases an additional permissible purpose for the evidence may not become clear until just before, or even during, trial.

• Finally, the amendment eliminates the requirement that the defendant must make a request before notice is provided. That requirement is not found in any other notice provision in the Federal Rules of Evidence. It has resulted mostly in boilerplate demands on the one hand, and a trap for the unwary on the other. Moreover, many local rules require the government to provide notice of Rule 404(b) material without regard to whether it has been requested. And in many cases, notice is provided when the government moves in limine for an advance ruling on the admissibility of Rule 404(b) evidence. The request requirement has thus outlived any usefulness it may once have had.

As to the textual clarifications, the word “other” is restored to the location it held before restyling in 2011, to confirm that Rule 404(b) applies to crimes, wrongs and acts “other” than those at issue in the case; and the headings are changed accordingly. No substantive change is intended.

PROPOSED AMENDMENTS TO THE FEDERAL RULES OF EVIDENCE2

Rule 404. Character Evidence; Other Crimes, Wrongs or Other Acts

* * * * *

(b) Other Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a any other crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This 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:

(3) Notice in a Criminal Case. 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, so that the defendant has a fair opportunity to meet it; and

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial—or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

Committee Note

Rule 404(b) has been amended principally to impose additional notice requirements on the prosecution in a criminal case. In addition, clarifications have been made to the text and headings.

The notice provision has been changed in a number of respects:

• The prosecution must not only identify the evidence that it intends to offer pursuant to the rule but also articulate a non-propensity purpose for which the evidence is offered and the basis for concluding that the evidence is relevant in light of this purpose. The earlier requirement that the prosecution provide notice of only the “general nature” of the evidence was understood by some courts to permit the government to satisfy the notice obligation without describing the specific act that the evidence would tend to prove, and without explaining the relevance of the evidence for a non-propensity purpose. This amendment makes clear what notice is required.

• The pretrial notice must be in writing—which requirement is satisfied by notice in electronic form. See Rule 101(b)(6). Requiring the notice to be in writing provides certainty and reduces arguments about whether notice was actually provided.

• Notice must be provided before trial in such time as to allow the defendant a fair opportunity to meet the evidence, unless the court excuses that requirement upon a showing of good cause. See Rules 609(b), 807, and 902(11). Advance notice of Rule 404(b) evidence is important so that the parties and the court have adequate opportunity to assess the evidence, the purpose for which it is offered, and whether the requirements of Rule 403 have been satisfied—even in cases in which a final determination as to the admissibility of the evidence must await trial. When notice is provided during trial after a finding of good cause, the court may need to consider protective measures to assure that the opponent is not prejudiced. See, e.g., United States v. Lopez–Gutierrez, 83 F.3d 1235 (10th Cir. 1996) (notice given at trial due to good cause; the trial court properly made the witness available to the defendant before the bad act evidence was introduced); United States v. Perez–Tosta, 36 F.3d 1552 (11th Cir. 1994) (defendant was granted five days to prepare after notice was given, upon good cause, just before voir dire).

• The good cause exception applies not only to the timing of the notice as a whole but also to the timing of the obligations to articulate a non-propensity purpose and the reasoning supporting that purpose. A good cause exception for the timing of the articulation requirements is necessary because in some cases an additional permissible purpose for the evidence may not become clear until just before, or even during, trial.

• Finally, the amendment eliminates the requirement that the defendant must make a request before notice is provided. That requirement is not found in any other notice provision in the Federal Rules of Evidence. It has resulted mostly in boilerplate demands on the one hand, and a trap for the unwary on the other. Moreover, many local rules require the government to provide notice of Rule 404(b) material without regard to whether it has been requested. And in many cases, notice is provided when the government moves in limine for an advance ruling on the admissibility of Rule 404(b) evidence. The request requirement has thus outlived any usefulness it may once have had.

As to the textual clarifications, the word “other” is restored to the location it held before restyling in 2011, to confirm that Rule 404(b) applies to crimes, wrongs and acts “other” than those at issue in the case; and the headings are changed accordingly. No substantive change is intended.

Agenda E–19

Rules

September 2019

REPORT OF THE JUDICIAL CONFERENCE

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

TO THE CHIEF JUSTICE OF THE UNITED STATES AND MEMBERS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES:

* * * * *

FEDERAL RULES OF EVIDENCE

Rule Recommended for Approval and Transmission

The Advisory Committee submitted a proposed amendment to Rule 404, with a recommendation that it be approved and transmitted to the Judicial Conference. The proposed amendment was published for public comment in August 2018.

Rule 404(b) is the rule that governs the admissibility of evidence of other crimes, wrongs, or acts. Several courts of appeal have suggested that the rule needs to be more carefully applied and have set forth criteria for more careful application. In its ongoing review of the developing case law, the Advisory Committee determined that it would not propose substantive amendment of Rule 404(b) because any such amendment would make the rule more complex without rendering substantial improvement.

However, the Advisory Committee did recognize that important protection for defendants in criminal cases could be promoted by expanding the prosecutor’s notice obligations under the rule. The DOJ proffered language that would require the prosecutor to describe in the notice “the non-propensity purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose.” In addition, the Advisory Committee determined that the current requirement that the prosecutor must disclose only the “general nature” of the bad act should be deleted considering the prosecution’s expanded notice obligations under the DOJ proposal, and that the existing requirement that the defendant request notice was an unnecessary impediment and should be deleted.

Finally, the Advisory Committee determined that the restyled phrase “crimes, wrongs, or other acts” should be restored to its original form: “other crimes, wrongs, or acts.” This would clarify that Rule 404(b) applies to crimes, wrongs, and acts other than those charged.

The comments received were generally favorable. The Advisory Committee considered those comments, as well as discussion at the June 2018 Standing Committee meeting, and made minor changes to the proposed amendment, including changing the term “non-propensity purpose” to “permitted purpose.”

The Standing Committee voted unanimously to adopt the recommendations of the Advisory Committee.

* * * * *

Recommendation: That the Judicial Conference approve the proposed amendment to Evidence Rule 404 * * * and transmit it to the Supreme Court for consideration with a recommendation that it be adopted by the Court and transmitted to Congress in accordance with the law.

* * * * *

Respectfully submitted,David G. CampbellChairJesse M. Furman Peter D. KeislerDaniel C. Girard William K. KelleyRobert J. Giuffra Jr. Carolyn B. KuhlSusan P. Graber Jeffrey A. RosenFrank M. Hull Srikanth SrinivasanWilliam J. Kayatta Jr. Amy J. St. Eve

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

DAVID G. CAMPBELLCHAIRS OF ADVISORY COMMITTEES
CHAIR
MICHAEL A. CHAGARES
REBECCA A. WOMELDORFAPPELLATE RULES
SECRETARY
DENNIS R. DOW
BANKRUPTCY RULES
JOHN D. BATES
CIVIL RULES
DONALD W. MOLLOY
CRIMINAL RULES
DEBRA ANN LIVINGSTON
EVIDENCE RULES

MEMORANDUM

TO:Hon. David G. Campbell, Chair
Committee on Rules of Practice and Procedure
FROM:Hon. Debra A. Livingston, Chair
Advisory Committee on Evidence Rules
RE:Report of the Advisory Committee on Evidence Rules
DATE:May 30, 2019

I. Introduction.

The Advisory Committee on Evidence Rules (the “Committee”) met on May 3, 2019, in Washington, D.C.

* * * * *

The Committee made the following determinations at the meeting:

• It unanimously approved the proposed amendment to Rule 404(b) and is submitting it to the Standing Committee for final approval.

* * * * *

II. Action Item

A. Proposed Amendment to Rule 404(b), for Final Approval. The Committee has been monitoring significant developments in the case law on Rule 404(b), governing admissibility of other crimes, wrongs, or acts. Several Circuit courts have suggested that the rule needs to be more carefully applied and have set forth criteria for that more careful application. The focus has been on three areas:

1) Requiring the prosecutor not only to articulate a proper purpose but to explain how the bad act evidence proves that purpose without relying on a propensity inference.

2) Limiting admissibility of bad acts offered to prove intent or knowledge where the defendant has not actively contested those elements.

3) Limiting the “inextricably intertwined” doctrine, under which bad act evidence is not covered by Rule 404(b) because it proves a fact that is inextricably intertwined with the charged crime.

Over several meetings, the Committee considered a number of textual changes to address these case law developments. At its April, 2018 meeting the Committee determined that it would not propose substantive amendments to Rule 404(b) to accord with the developing case law, because they would make the Rule more complex without rendering substantial improvement. Thus, any attempt to define “inextricably intertwined” is unlikely to do any better than the courts are already doing, because each case is fact-sensitive, and line-drawing between “other” acts and acts charged will always be indeterminate. Further, any attempt to codify an “active dispute” raises questions about how “active” a dispute would have to be, and is a matter better addressed by balancing probative value and prejudicial effect. Finally, an attempt to require the court to establish the probative value of a bad act by a chain of inferences that did not involve propensity would add substantial complexity, while ignoring that in some cases, a bad act is legitimately offered for a proper purpose but is nonetheless bound up with a propensity inference — an example would be use of the well-known “doctrine of chances” to prove the unlikelihood that two unusual acts could have both been accidental.

The Committee also considered a proposal to provide a more protective balancing test for bad acts offered against defendants in criminal cases: that the probative value must outweigh the prejudicial effect. While this proposal would have the virtue of flexibility and would rely on the traditional discretion that courts have in this area, the Committee determined that it would result in too much exclusion of important, probative evidence.

The Committee did recognize, however, that important protection for defendants in criminal cases could be promoted by expanding the prosecutor’s notice obligations under Rule 404(b). The Department of Justice proffered language that would require the prosecutor to “articulate in the notice the non-propensity purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose.” In addition, the Committee determined that the current requirement that the prosecutor must disclose only the “general nature” of the bad act should be deleted, in light of the prosecution’s expanded notice obligations under the DOJ proposal. And the Committee easily determined that the existing requirement that the defendant request notice was an unnecessary impediment and should be deleted.

Finally, the Committee determined that the restyled phrase “crimes, wrongs, or other acts” should be restored to its original form: “other crimes, wrongs, or acts.” This would clarify that Rule 404(b) applies to other acts and not the acts charged.

The proposal to amend Rule 404(b), focusing mainly on a fortified notice requirement in criminal cases, was released for public comment in August, 2018. The public comment was sparse, but largely affirmative. At its May, 2019 meeting, the Committee considered the public comments, as well as comments made at the Standing Committee meeting of June, 2018. The Committee made minor changes to the proposal as issued for public comment — the most important change being that the term “non-propensity purpose” in the text was changed to “permitted purpose.”

The Committee unanimously approved proposed amendments to the notice provision of Rule 404(b), and the textual clarification of “other” crimes, wrongs, or acts. The Committee recommends that these proposed changes, and the accompanying Committee Note, be approved by the Standing Committee and referred to the Judicial Conference.