How are the courts to properly apply Fed. R. Evid. 404(b)?

QUESTION PRESENTED FOR REVIEW One of the most litigated issues under the Federal Rules of Evidence is the use of Fed. R. Evid. 404(b) as a conduit for introducing prior bad acts or previous convictions of a defendant during a trial for a separate matter. Rule 404(b) was adopted to safeguard defendants from the inherent prejudice that bad acts and bad character could trigger. At the same time, Rule 404(b) provided some avenues for admitting such evidence as long as it was for a proper purpose not implicating criminal propensity, and as long as the prejudice did not overwhelm the evidence’s probative value. The operation of Rule 404(b) is a source of concern because it often enables the government to present highly prejudicial evidence of other criminal conduct by defendants which can distract from the main issues and facts in the case. The federal circuit courts are in conflict regarding how to properly apply Rule 404(b). The Third Circuit requires a strong connection between the evidence to be introduced and a proper 404(b) purpose that permits its admission, all in the context of the material issues of the trial. This application of Rule 404(b) is a substantive analysis, and it requires the proponent of the evidence to establish a real nonpropensity purpose. In contrast, the Eleventh Circuit takes more of a theoretical approach to Rule 404(b). The Eleventh Circuit allows admission of the evidence even if there is a weak connection between the evidence and its stated 404(b) purpose within the context of the material issues of the trial. i Accordingly, the Question Presented is: How are the courts to properly apply Fed. R. Evid. 404(b)? Should they apply the Third Circuit’s more substantive approach which requires a close connection between the 404(b) evidence and the material issues in the case, as explained in United States v. Caldwell, 760 F.3d 267 (3d Cir. 2014)? Alternatively, should the courts apply the Eleventh Circuit’s more theoretical approach which requires a lower connection between the 404(b) evidence and the material issues in the case as demonstrated in the case at bar? ii INTERESTED PARTIES There are no