It's Time to Put Character Back into the Character-Evidence Rule

Abstract

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.

The way to reverse this practice is, paradoxically, to make it easier for courts to admit high-probative-value other-acts evidence. Rule 404(b) should be written and applied in a manner that aligns with its goal of furthering accurate factfinding. This Article suggests two ways of doing this. First, courts must confront the issue they have so long avoided: they must grapple with the meaning of character. By doing so, courts can recognize that some types of high-probative-value other-acts evidence should not be considered character evidence. That will permit them to admit such evidence while acknowledging that it requires a propensity inference. Likewise, evidence of a person’s attitudes or psychological or medical conditions should not be considered character. Second, Rule 404(b) should be amended to provide a true exception for one particular type of other-acts evidence whose probative value is categorically greater than its prejudicial effect. Other-acts evidence should be admissible to prove a defendant’s intent unless the defendant agrees not to controvert state of mind.

Providing courts legitimate grounds for admitting such high-probative-value other-acts evidence even when its probative value flows from a propensity inference will mean that courts will no longer have to engage in propensity-inference denial. In time, a new body of case law should emerge that gives prosecutors fewer avenues for arguing that low-probative-value other-acts evidence should be admitted

Keywords: evidence, character, character evidence, Rule 404(b)