When Prior Acts Become Admissible: Navigating Rule 404(b)(2) in Civil Litigation

While Rule 404(b)(1) generally excludes evidence of prior acts offered to show a person’s character,  Federal Rule of Evidence 404(b)(2) is often overlooked in civil litigation. In his most recent article in the Maryland Bar Journal, “The Admissibility of Other Acts” Murphy J. Burke, III explains how this important exception permits the admission of prior acts evidence for purposes other than proving character, and why litigators should carefully consider its strategic use.

Intro

In the MSBA publication dated July 29, 2026, Murphy reviews federal and Maryland case law, discussing how courts analyze and apply the admissibility of “other acts” evidence, the role of Rule 403 balancing and practical considerations for litigators seeking to introduce or challenge such evidence during civil litigation, significantly affecting their evidentiary strategy. The article provides valuable insight into evidentiary strategy and highlights circumstances in which prior acts may be admissible.

Details

In his article, Murphy discusses several federal decisions illustrating both successful and unsuccessful attempts to admit other acts evidence. Through the cases presented, Murphy demonstrates that courts closely evaluate whether the evidence directly advances a disputed issue in the litigation while balancing its probative value against the potential for unfair prejudice, jury confusion or unnecessary distraction under Rule 403.

Murphy also contrasts the federal approach with Maryland law, explaining that Maryland state courts generally apply a straightforward relevancy and prejudice analysis in civil matters. The comparison highlights the importance of understanding jurisdiction-specific evidentiary standards when developing litigation strategy.

Background to the Rule

Although Rule 404(b)(1) generally prohibits the admission of prior acts solely to prove that a party acted in conformity with a particular character trait, Rule 404(b)(2) creates important exceptions. Murphy explains that evidence of prior acts may be admissible when offered to establish legitimate issues such as motive, intent, opportunity, preparation, knowledge, identity or the absence of mistake or accident rather than to suggest a person’s propensity to act in a certain way.

Murphy observes that successful use of Rule 404(b)(2) often depends on demonstrating a meaningful factual connection between the prior conduct and the issues before the court. Even then, courts continue to evaluate whether the evidence’s probative value outweighs any potential prejudice or risk of confusing the jury.

Why It Matters

Rule 404(b)(2) provides litigators with an important but limited avenue for introducing evidence of prior acts when offered for a proper evidentiary purpose.

Evidentiary rulings can significantly influence the outcome of civil litigation long before a case reaches a jury. Understanding when prior acts evidence may be admitted allows litigators to better develop case strategy, anticipate evidentiary challenges and prepare persuasive arguments supporting or opposing the introduction of such evidence.

Murphy’s article reminds legal practitioners that Rule 404(b)(2) should not be overlooked during case evaluation and trial preparation. A thoughtful analysis of the applicable evidentiary standards may uncover opportunities to strengthen a client’s position while avoiding unnecessary evidentiary disputes.

Summary

Murphy concludes that successful use of Rule 404(b)(2) depends on careful factual connections, strategic planning and an understanding of the evidentiary standards governing admissibility.

About the Author

Murphy J. Burke, III is licensed to practice in Louisiana, Maryland and Texas. He concentrates his law practice on complex civil litigation and appellate matters. Murphy represents clients in a broad range of litigation involving transportation, insurance and commercial disputes. He regularly authors articles on developments in trial practice and evidentiary issues affecting civil litigators. His latest published article reflects his ongoing commitment to providing practical, informed legal insight.

This summary is provided only for informational purposes only and is not to be considered legal advice. To read Murphy J. Burke III’s complete published article, please visit the publisher’s website. A subscription may be required