Mil. R. Evid. 404

Rosa v. Attorney General of New Jersey, (3rd Cir. 2025)

Rosa is an interesting federal habeas case because (1) it was done pro se, and (2) the petitioner won on an IAC claim. In commenting on the case, Prof. Colin Miller notes

-courts almost never grant claims of ineffective of counsel, finding that defendants either failed to prove prejudice or deficient performance;
-federal habeas petitions based on ineffective assistance of counsel are even less successful; and
-pro se habeas petitions based on ineffective assistance of counsel are even less successful.

Prof. Miller notes that despite the Rule being one of inclusion, he notes

The Third Circuit found that trial counsel was ineffective for failing to object to [404] character evidence.
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​By failing to dam the flood . . . by not taking enough remedial action.

Failed to object when the state put on detailed evidence about the beef-distribution burglary that went beyond proving the identity of the gun. The 404(b) order provided that the evidence could be used only to link Rosa to the weapon and thus the charged crimes....It specifically noted that it was not admitting the evidence to prove that the other alleged burglaries were “similar” to the burglary for which Rosa stood trial.

But the prosecution blew past those clear bounds. To prove the identity of the gun, it needed to present testimony only that Rosa had (1) stolen the gun at the first burglary and (2) possessed it at the attempted third one, “without the details involving the actual” heist plans....But from the start, the prosecution slipped extraneous, prejudicial details into the trial. In his opening statement, the prosecutor detailed how the beef-distributor burglary was executed and likened it to the check-cashing-store burglary. A cop testified vividly about what the scene of the beef-distribution burglary looked like and the unique procedures that the burglars used. And Nunez explained to the jury how each burglary was “planned and executed” like the others. Id. Such detailed testimony was not needed to prove identity, and it was severely prejudicial. It blurred the crimes charged with the alleged other crimes and primed the jury to conclude that Rosa had a propensity to commit burglaries—a forbidden inference.

Any effective defense lawyer should have known to object as soon as this evidence went beyond the 404(b) order. Counsel did so later on during the state's presentation, when Nunez began to testify about the details of the attempted cellphone-store burglary. But his failure to do so throughout this extensive earlier testimony is inexplicable.

Second, and more importantly, defense counsel never once asked for a limiting instruction for any of the 404(b) evidence. Even if the state had presented all the 404(b) evidence within the bounds of the 404(b) order, it still would have risked severely prejudicing Rosa absent timely and specific limiting instructions. Any reasonable defense counsel should have known this. And there was no downside to asking for them. As in Albrecht, objecting or instructing the jury would not have inadvertently underscored “fleeting[ ]” evidence that the jury might otherwise have missed; the state had spent substantial time dragging the jury through it....
Given these facts, we cannot imagine any valid reason not to object or to seek prompt, focused limiting instructions—especially when counsel knew the evidence was objectionable. There was zero reason not to.

From the opinion

When prior-bad-acts evidence floods the state’s case, counsel must act. Even after the court admits prior-bad-acts for a limited purpose, counsel must keep striving to mitigate its impact. “[T]he fact that evidence is admissible does not decide the question whether a limiting instruction should still have been requested by counsel.” This is because, as both the U.S. and New Jersey Supreme Courts have long recognized, prior-bad-acts evidence is highly prejudicial. It primes juries to draw a forbidden inference: “[B]ecause he did it before, he must have done it again.” And it is doubly dangerous when “it reveals that the defendant previously committed the very kind of crime” for which he is on trial. 

As Prof. Miller notes, the problem with IAC claims is showing prejudice. The Third notes in this case that "The state habeas court discounted prejudice because it thought the evidence of guilt was strong. But the record tells a different story."

And on a pet peeve of mine, the Third had this to say.

Yet the state and our dissenting colleague claim that the two belated, boilerplate limiting instructions were enough to guard against prejudice. But they were not. True, we ordinarily presume that the jury followed those instructions. But as both New Jersey courts and this court have repeatedly recognized, even a well-heeded instruction may not suffice to purge the taint. Toto, 529 F.2d at 282–83; State v. Stevens, 558 A.2d 833, 844 (N.J. 1989) (“[T]he inherently prejudicial nature of such evidence casts doubt on a jury’s ability to follow even the mostprecise limiting instruction.”)