University of Miami Law Review
In all of the federal circuit courts of appeals, application of Rule 404(b) of the Federal Rules of Evidence has been distorted by judicially-created "tests" that, while intended to assist trial courts in properly admitting or excluding evidence, do not actually test for the kind of evidence prohibited by this rule. Rule 404(b) prohibits evidence of "crimes, wrongs, or other acts" if the purpose for admitting the evidence is to prove action in accordance with a character trait. This evidence is commonly referred to as "propensity" evidence, or "once a drug dealer, always a drug dealer" evidence.
This Article examines three counter-productive heuristics that the federal circuit courts of appeals have created: (1) multi-factor tests based on a paragraph of dicta from the Supreme Court's opinion in Huddleston v. United States; (2) a set of "exceptions" based on a misreading of the list of permitted purposes for admitting other-acts evidence found in Rule 404(b)(2); and (3) a set of additional "exceptions" extrapolated from an advisory committee note's reference to "intrinsic" evidence. Recently, the U.S. Court of Appeals for the Seventh Circuit, in an en banc decision, recognized that its approach to Rule 404(b) had become so distorted that a new approach was required. This Article concludes that the other federal circuit courts of appeals should follow this example and proposes that such a reframing of a circuit's approach to Rule 404(b) should not require a decision of the court en banc.
Dora W. Klein, The (Mis)Application of Rule 404(b) Heuristics, 72 U. Miami L. Rev. 706 (2018).