Closing Pandora's Box: Limiting the Use of 404(b) to Introduce Prior Convictions in Drug Prosecutions

32 Pages Posted: 25 Apr 2015 Last revised: 27 Jul 2015

Date Written: April 22, 2015


The federal circuit courts diverge in the approach they take in deciding when to admit prior drug convictions, particularly in possession with intent to distribute (“PWID”) cases. Currently, six circuits presumptively allow the introduction of at least some prior convictions under 404(b) in PWID cases without identifying non-propensity reasoning. The First, Second, Third, Fourth, Seventh, and Tenth Circuits, however, have demanded a “case-by-case” analysis in which they require the prior conviction to have a probative, non-propensity purpose. This Note identifies five lines of reasoning employed by courts following the former approach — the presumptive admission of prior convictions in PWID. It argues that such reasoning not only eliminates desirable protections placed on the defendant elsewhere in the Federal Rules of Evidence but also often introduces propensity evidence, which is specifically prohibited by Federal Rule of Evidence 404. Instead, this Note advocates an approach in line with the reasoning followed by courts adopting a “case-by-case” analysis: that 404(b) evidence of prior convictions can be introduced only when it is a disputed element of the crime and only when it has probative, non-propensity purposes specific to the facts of that case. Furthermore, this Note argues that an exacting 403 analysis in which courts seriously consider the prejudicial impact of prior convictions would prevent the admission of highly prejudicial prior convictions with minimal probative value.

Keywords: 404(b), prior conviction, evidence

Suggested Citation

Greenberg, Deena, Closing Pandora's Box: Limiting the Use of 404(b) to Introduce Prior Convictions in Drug Prosecutions (April 22, 2015). Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Forthcoming, Available at SSRN:

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