Whether data about a defendant's other acts are admissible under Rule 404(b) to show unlawful intent based only on comparisons or statistics, without evidence that those other acts involved an unlawful intent?

QUESTION PRESENTED FOR REVIEW Rule 404(b) prohibits evidence of a defendant’s uncharged acts that “might adversely reflect on the actor’s character,” unless the evidence helps prove intent, motive, or one of the other purposes enumerated in the rule. Huddleston v. United States, 485 U.S. 681, 686 (1988). The circuit courts have split over whether aggregate data and statistics about a person’s prior conduct are admissible under Rule 404(b) to show unlawful intent, without evidence about the unlawfulness of the underlying incidents contained in the data set. In this case and similar ones, the particular question was whether a medical professional’s practice-wide prescription data are admissible to show an unlawful intent to prescribe without a medical purpose, based simply on a comparison to other doctors’ prescription rates, without evidence of the impropriety of the prescriptions. In a different context, the question was whether data from a tax preparer’s entire practice are admissible to show an intent to make false statements, based only on the percentage of clients that made the same tax claims as the charged acts, without evidence that the claims were false as to those other clients. And in other cases, the question has been whether data about the number of excessive force complaints against an officer, as compared to other officers, are admissible to show intent to use excessive force, without evidence of whether the complaints were proven true. The question presented is: Whether data about a defendant’s other acts are admissible under Rule 404(b) to show unlawful intent based only on comparisons or statistics, without evidence that those other acts involved an unlawful intent? i