Rule 404(b) is the bane of the criminal defendant, although it is equally applicable in civil litigation. But criminal cases come with the added facet of the guarantee of the right to counsel, and with that right comes the obligation for counsel to be an effective lawyer, not just a present one. And when 404(b) evidence is offered against an accused, effective lawyering means doing all one can to seek its exclusion, have it toned down, or ensure that the jury does no more harm with it than the law permits.
That relationship – the more 404(b) proof, the more counsel must respond – was brought home in a recent Third Circuit decision. The principle was stated as follows:
When prior-bad-acts evidence floods the state’s case, counsel must act. Even after the court admits prior-bad-acts for a limited purpose, counsel must keep striving to mitigate its impact.
Rosa v. Att’y Gen. of N.J., 2025 U.S. App. LEXIS 16024, *12-13 (3rd Cir. June 30, 2025)(italics in original). The words are even more powerful because of context – Rosa was seeking relief on federal habeas, where deference to both counsel’s choice3s and the state court’s rejection of an ineffectiveness claim make the grant of relief a relative rarity.
What went wrong? The tenor of the OPINION makes it clear:
- [W]hen the 404(b) evidence is not fleeting but floods the state’s case, counsel’s silence cannot reasonably be described as strategic
- Because prejudicial evidence flooded the state’s case against Rosa, his counsel fell below constitutional norms by not taking enough remedial action.
- Sometimes counsel’s performance is so woeful that it “cannot be characterized as the product of strategic judgment.”
- Despite all these witnesses’ testimony dripping with prejudicial prior-bad-acts evidence, the court issued limiting instructions before only one witness’s testimony and at the end of the trial.
In less poetic terms, counsel’s failures were several – some of the 404(b) proof was for a limited purpose but was presented with “extraneous details;” no limiting instruction was sought when the proof was adduced; and the 404(b) proof was argued beyond the purpose for which it was properly admitted.
The Rosa OPINION holds more, in particular lessons for judges reviewing claims of ineffective representation. Two bear mention.
First, courts can’t stop when they find that “well, counsel initially objected to this proof.” Separate errors can arise once it is admitted depending on how it is used. The ineffectiveness inquiry is more demanding.
Second, the fact that the lawyer has a putative explanation for their conduct doesn’t make it credible. The post-hoc justification needs to be assessed in light of what actually happened. The Rosa majority elaborated:
[O]ur dissenting colleague paints counsel’s silence as a sound tactic worthy of deference. In his view, counsel did not need to protect Rosa from this evidence because his whole theory of the case was that Rosa did not commit these prior bad acts…
…If counsel’s theory was that Rosa never committed these other burglaries, then it made no sense to let the jury hear for hours about how he carried them out. Far from bolstering counsel’s theory, his silence undermined it.
Rosa v. Att’y Gen. of N.J., 2025 U.S. App. LEXIS 16024, *17-18
What is the upshot? I return to the majority’s directive, what should be the mantra for any counsel confronted with damning “other acts” proof. “When prior-bad-acts evidence floods the state’s case, counsel must act. Even after the court admits prior-bad-acts for a limited purpose, counsel must keep striving to mitigate its impact.
Strive on.