Federal Rule of Evidence 404(b), which governs the admissibility of other-acts evidence, is a mess, and recently-promulgated amendments will not fix it. The amendments fail to address the two major problems underlying Rule 404(b). First, the rule is based on a categorical judgment about the relative probative value and unfair prejudice of other-acts evidence when offered as character evidence; that is, to prove the defendant acted in accordance with his or her character. In numerous cases, however, other-acts evidence is highly probative and the rule’s categorical judgment is decidedly wrong. Not surprisingly, courts often admit such evidence, typically by erroneously denying that the evidence is being offered to prove the defendant acted in accordance with his or her character. The second problem exacerbates the first. Although the rule prohibits only character evidence, no one knows what character means. Neither the case law nor the rules define character in any meaningful way. Consequently, we have a body of case law that authorizes the admission of not only high-probative-value other-acts evidence but also precisely the type of low-probative-value other-acts evidence that Rule 404(b) was designed to exclude.
It’s Time to Put Character Back into the Character-Evidence Rule,
104 Marq. L. Rev. 709
Available at: https://scholarship.law.marquette.edu/mulr/vol104/iss3/7