In criminal cases, Federal Rule of Evidence 404(b) is typically used by prosecutors seeking to introduce non-propensity “crimes, wrongs, or other acts” evidence against defendants. However, sometimes it is the defendant who seeks to use the Rule as a vehicle for evidence admissibility, either to provide such evidence to implicate the guilt of a third party or to help prove the intent or motive of alleged victims in violent crimes involving altercations. This latter defense-proffered use of Rule 404(b) has been termed “reverse” 404(b), and currently there is disagreement among courts (both federal and state) regarding how to assess the admissibility of such evidence. The question at stake in this disagreement—as it is generally framed—is whether the Rule should be applied in a uniform manner to evidence offered by both defendants and prosecutors (the plain language of the Rule does not indicate any reason to treat them differently), or whether the Rule should be relaxed when used by criminal defendants (given the lower/nonexistent danger of “trial by character” and related fairness concerns). In this Comment, I argue that, by framing this problem as a narrow question of evidence law, scholars and practitioners have largely failed to recognize and appreciate the important constitutional dimension of the issue. Based on an analysis of the recent Tenth Circuit decision in United States v. Tony, I discuss the pitfalls of regarding “reverse” 404(b) as solely a concern of evidence law, before arguing for a broader approach to such evidence that gives primacy to—for both practical and conceptual reasons—a consideration of the interplay between constitutional rights and evidence law that these situations evoke. This new approach, based on the Compulsory Process Clause of the Sixth Amendment, offers a vision of “reverse” 404(b)–type situations that is clearer as a matter of trial-level application and appellate procedure, and also fairer and more protective of the rights of the parties involved.
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“Reverse” 404(b) Is Not an Evidence Law Issue: A Call to Revive the Compulsory Process Clause as a Vehicle for Evidence Admission,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol52/iss1/9