Swiss Cheese That's All Hole: How Using Reading Material to Prove Criminal Intent Threatens the Propensity Rule

In United States v. Curtin, the Ninth Circuit, sitting en banc, held that Federal Rule of Evidence 404(b) permits a defendant’s reading material to be introduced as evidence of his intent to commit a crime. The decision expressly overruled Guam v. Shymanovitz, an earlier Ninth Circuit opinion that called the admissibility of reading material into question. This Note argues that the Curtin decision failed to appreciate the extent to which reading material may reveal only a defendant’s propensity to commit a charged crime, rather than his or her intent to do so. To reduce the possibility that impermissible propensity evidence will be erroneously admitted, this Note proposes that courts considering the admissibility of reading material under Rule 404(b) more closely examine whether the evidence requires an inference about the defendant’s character or propensity to commit crimes.