Circuit Split as to Proper Standard of Review — De Novo or Abuse of Discretion — to Determine Whether Evidence Falls within Rule 404(b); Factors Guiding 404(b) Determination

Pierce v. Virga, 2012 U.S. Dist. LEXIS 166663 (E.D. Cal. Nov. 21, 2012):

There is a split among the circuit courts as to the proper standard of review, de novo or abuse of discretion, to be applied to the question of whether evidence falls within the scope of Rule 404(b). The Ninth Circuit applies a de novo standard, [United States v. Montgomery, 384 F.3d 1050, 1061 (9th Cir. 2004),] while the Second Circuit applies an abuse of discretion standard. [United States v. Paulino, 445 F.3d 211, 221 (2d Cir. 2006).] *** The Supreme Court has held that in ruling on whether evidence is properly admitted under Rule 404(b) the court must consider whether: (1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court, if requested, administered an appropriate limiting instruction. [Huddleston v. United States, 485 U.S. 681, 691-92 (1988).] ***

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