Wednesday, August 02, 2006

New Directions for FRE 404(b)?

United States v. Keefer Jones, No. 04-2447 (August 1, 2006): Mr. Jones was convicted of possession with intent to distribute crack. Invoking Federal Rule of Evidence 404(b), the government introduced a prior conviction for drug distribution. Its theory was that this conviction went to the issue of intent.

On appeal the Court upheld the conviction, but its remarks suggest that district courts need to be more careful and deliberate in their consideration of such evidence.

"Although we must give great deference to the district court’s decision to admit the evidence, we pause to point out that our examination of the record in this case reveals that the district court’s consideration of the matter does not appear to reflect the sort of critical evaluation of the issue that we believe ought to be undertaken in determining whether, in an exercise of discretion, such evidence ought to be admitted on the issue of intent. As far as we can ascertain from the cold record, in deciding the matter, the court recited the governing principles from our case law, but otherwise revealed little in the way of critical analysis as to how those principles ought to apply to the facts of this particular case. This lapse well may be attributable, in part at least, to our own treatment of such matters on occasion; our cases have not always reflected a critical application of the principles reflected in the case law to the facts of the individual case."

The Court also noted that defense counsel did little to focus the district court’s attention on the specific facts of this case.

Although he joined in the Court’s opinion, Judge Easterbrook’s concurring opinion suggested that district judges must give more thought to the admission of Rule 404(b) evidence. He emphasized that the Rule decrees that such evidence can be admitted, not that it is automatically admissible. It must be relevant as measured by FRE 402, and its probative value must outweigh its potential for prejudice, as mandated by FRE 403. He expressed grave doubt that a conviction for another drug offense would say much about the intent of the defendant in the current offense. Nor does a limiting instruction do much to cure the problem. He concluded with the observation that prior convictions should generally be excluded unless the defense suggests that the defendant did not have the requisite intent or knowledge.

Regrettably, both opinions concluded that the conviction, which was six years old, was not remote in time. One wonders if any amount of time will make a conviction too remote for Rule 404(b) purposes.