Viewing Federal Rules of Evidence 404(b) and 608(b) as Parts of the Same Legislative Scheme: The Tightening of Rule 404(b) Makes It the Right Time to Clarify Rule 608(b) 

May 1, 2024

Part I of this Essay argues that the substantive and procedural standards for admitting bad acts evidence under Rule 404(b) have been toughened.  As a matter of substance, several courts have repudiated the use of buzzwords such as “res gestae,” and other courts now subject prosecution proffers to more rigorous scrutiny when the government endeavors to invoke such theories as the doctrine of objective chances, the inextricable intertwinement doctrine, and proof of plan.  Perhaps even more importantly, on the procedural front, there are now pretrial notice requirements that give the defense much more time to evaluate and critique the prosecution’s claims that the evidence in question possesses legitimate, noncharacter relevance.  For their part, many appellate courts are pressuring trial judges to administer limiting instructions that single out the supposed noncharacter theory and explain the theory in clear, detailed terms.

Part I concludes by predicting that in the long term, the tightening of Rule 404(b)’s substantive and procedural standards will give prosecutors a powerful incentive to resort to Rule 608(b) as an alternative justification for informing the jury of the accused’s other misdeeds.  Currently, prosecutors make minimal use of Rule 608(b).  Prosecutors prefer Rule 404(b) as a theory of admissibility because it permits the substantive use of extrinsic testimony about an accused’s other misconduct.  Given the courts’ past receptivity to Rule 404(b) evidence, prosecutors have felt little need to turn to Rule 608(b), which allows the testimony to be used only for the limited purpose of impeachment and restricts resort to extrinsic evidence.  For the last three decades, I have made it a practice to scan every opinion published in a Federal Supplement advance sheet.  It speaks volumes that the typical Federal Supplement advance sheet contains multiple 404(b) cases but no 608(b) cases.  In the near future, that might change.

Part II discusses the problems that will arise if prosecutors begin to shift toward Rule 608(b).  Part II points out that Rule 608(b) is the subject of several splits of authority.  To begin with, may the proponent employ Rule 608(b) if the act in question has already been the subject of a conviction?  In addition, during 608(b) cross-examination, to what extent—if any—may the cross-examiner use documentary evidence to pressure the witness to concede their performance of the untruthful act?  Finally, despite the rule’s seemingly explicit ban on “extrinsic evidence” of the act, may the cross-examiner confront the witness if a judge or jury has made a finding rejecting the witness’s testimony on a prior occasion?  As we shall soon see, there is some case law on each of these issues.  However, compared to the volume of Rule 404(b) decisions, the bodies of relevant Rule 608(b) case law are small.  To date, these issues have not been especially troublesome because, again, by a wide margin, prosecutors have usually opted to take the Rule 404(b) route rather than the Rule 608(b) track.

In addition to identifying the splits of authority, Part II evaluates the conflicting views on these issues.  I hope that by calling the attention of Advisory Committee on Evidence Rules (the “Committee”) to these issues and describing the competing policy considerations, this Essay will persuade the Committee to address these issues and help the Committee choose how to come down on these issues.  The resolution of these 608(b) issues arguably requires an amendment to the rule.