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Sixth Circuit Court of Appeals Judge Raymond Kethledge thinks its time for the court to “clean up its law” regarding Federal Rule of Evidence (FRE) 404(b).
This week, Judge Kethledge wrote a dissental to the Sixth Circuit’s en banc rehearing denial in United States v. Clay, arguing that there are “significant and recurring issues” on which the Sixth Circuit has intra-circuit conflicts regarding the admission of prior bad acts evidence.
But if you were hoping for clarity before your next trial, you’re out of luck.
In January, the Sixth Circuit Court of Appeals reversed Gary Clay's carjacking and firearm convictions and granted him a new trial. Clay had appealed his convictions to the Cincinnati-based court, arguing that the district court improperly admitted evidence of his prior bad acts. The Sixth Circuit Court of Appeals agreed.
The government asked the Sixth Circuit for en banc rehearing. This week, the appellate court denied that request, over Judge Kethledge's objection. According to Kethledge, even the most conscientious district judge within the circuit cannot tell what the law is on prior bad acts admissions.
FRE 404(b) allows the government to introduce evidence of "other crimes, wrongs, or acts" committed by the defendant so long as the evidence is not used merely to show propensity and if it "bears upon a relevant issue in the case." Judge Kethledge, however, says that the Sixth Circuit has not defined how appeals about prior bad acts admissions should be addressed.
First, the standard of review is not clear. In Clay's case, the panel majority used de novo review. Judge Kethledge said he would have gone with abuse of discretion, since that's the standard the Supreme Court applies to evidentiary matters.
Second, Judge Kethledge notes that the Sixth Circuit can't decide between the Benton test and the Bell test when it comes to the showing necessary to admit evidence of a defendant's prior crimes under FRE 404(b).
What do you think? Is the Sixth Circuit's jurisprudence on FRE 404(b) the hot mess that Judge Kethledge claims in his dissental, or is he overreacting to the court's prior bad acts?