Steven Goode (University of Texas at Austin – School of Law) has posted It's Time to Put Character Back into the Character-Evidence Rule (Marquette Law Review, Forthcoming) on SSRN. Here is the 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 the rule. First, it is based on a categorical judgment about the relative probative value and unfair prejudice of other-acts evidence that is offered for a character-propensity inference – to prove the defendant acted in accordance with his or her character. In numerous cases, however, this categorical judgment is decidedly wrong because the other-acts evidence is highly probative. Not surprisingly, courts consistently admit such evidence, typically by erroneously denying that it requires a propensity-inference. The second problem exacerbates the first. Although the rule prohibits only character evidence, no one knows what character means. Neither the rules nor the case law defines character in any meaningful way. These two problems have resulted in a body of case law that authorizes the admission not only of 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. This Article suggests two ways of accomplishing this. First, courts must grapple with the meaning of character and recognize that, for purposes of Rule 404(b), character is a legal, not a social construct. Character must be defined in a manner that aligns with the rule’s goal of furthering accurate factfinding. Some types of high-probative-value other-act evidence should be defined as non-character evidence. This will allow courts to admit such evidence even as they acknowledge that it requires a propensity inference. Likewise, evidence of a person’s attitudes or psychological or medical condition should not be considered character evidence. Second, Rule 404(b) should be amended to provide a true exception for one category of other-acts evidence whose probative value is categorically greater than its prejudicial effect. Other-acts evidence should be admissible to prove, through a character-propensity inference, a defendant’s intent unless the defendant agrees not to controvert intent.
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 makes it more difficult for courts to admit low-probative-value other-acts evidence.
Recommended.