Reverse 404(b) evidence is the name courts have given to a less common use of Federal Rule of Evidence 404(b), wherein a defendant attempts to introduce the "other bad acts" of a third party, usually to prove that this third party committed the crime of which the defendant is accused or that the third party coerced the defendant into committing the crime. This Comment first reviews the standard use of FRE 404(b): when prosecutors seek to introduce other bad acts of the defendant. Then it explores how federal courts have addressed reverse 404(b) evidence. Currently there is no consensus among the circuits on what standard to use for admitting the evidence. Some consider the same strict requirements as are used to admit standard 404(b) evidence, while others seem to disregard the requirements of the rule altogether in order to give the defendant the best opportunity to present a complete defense. Additionally, the Comment shows how two state courts, those of Colorado and Kansas, have dealt with reverse 404(b) evidence in opposite ways. Finally, the Comment proposes two solutions for addressing reverse 404(b) evidence. These solutions balance the interests of all parties and, if adopted by the circuits and followed in the states, would promote consistency.
Reverse 404(B) Evidence: Exploring Standards When Defendants Want to Introduce Other Bad Acts of Third Parties,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol79/iss2/6