Rule 404(b) is the bane of the criminal defendant, although it is equally applicable in civil litigation.\u00a0 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.\u00a0 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.<\/p>\n
That relationship \u2013 the more 404(b) proof, the more counsel must respond \u2013 was brought home in a recent Third Circuit decision.\u00a0 The principle was stated as follows:<\/p>\n
When prior-bad-acts evidence floods the state’s case, counsel must act<\/em>. Even after the court admits prior-bad-acts for a limited\u00a0purpose, counsel must keep striving to mitigate its impact.<\/p>\n Rosa v. Att’y Gen. of N.J., 2025 U.S. App. LEXIS 16024, *12-13 (3rd<\/sup> Cir. June 30, 2025)(italics in original).\u00a0 The words are even more powerful because of context \u2013 Rosa was seeking relief on federal habeas, where deference to both counsel\u2019s choice3s and the state court\u2019s rejection of an ineffectiveness claim make the grant of relief a relative rarity.<\/p>\n What went wrong?\u00a0 The tenor of the OPINION makes it clear:<\/p>\n In less poetic terms, counsel\u2019s failures were several \u2013 some of the 404(b) proof was for a limited purpose but was presented with \u201cextraneous details;\u201d 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.<\/p>\n The Rosa <\/em>OPINION holds more, in particular lessons for judges reviewing claims of ineffective representation.\u00a0 Two bear mention.<\/p>\n First, courts can\u2019t stop when they find that \u201cwell, counsel initially objected to this proof.\u201d\u00a0 Separate errors can arise once it is admitted depending on how it is used.\u00a0 The ineffectiveness inquiry is more demanding.<\/p>\n Second, the fact that the lawyer has a putative explanation for their conduct doesn\u2019t make it credible.\u00a0 The post-hoc<\/em> justification needs to be assessed in light of what actually happened.\u00a0 The Rosa<\/em> majority elaborated:<\/p>\n [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\u2026<\/p>\n \u2026If 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.<\/p>\n Rosa v. Att’y Gen. of N.J., 2025 U.S. App. LEXIS 16024, *17-18<\/p>\n What is the upshot?\u00a0 I return to the majority\u2019s directive, what should be the mantra for any counsel confronted with damning \u201cother acts\u201d proof.\u00a0 \u201cWhen prior-bad-acts evidence floods the state’s case, counsel must act<\/em>. Even after the court admits prior-bad-acts for a limited\u00a0purpose, counsel must keep striving to mitigate its impact.<\/p>\n Strive on.<\/p>\n <\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Rule 404(b) is the bane of the criminal defendant, although it is equally applicable in civil litigation.\u00a0 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.\u00a0 And when 404(b)<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3],"tags":[],"coauthors":[330],"class_list":["post-3938","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog"],"yoast_head":"\n\n