San Diego Law Review
Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive heuristics, leading to evidentiary decisions that are contrary to the purpose of the rules. For example, many of the federal circuit courts of appeals have issued opinions implying or even explicitly asserting that the "inclusive" structure of Rule 404(b) creates a "presumption of admissibility” - when in fact the rule should be applied as "a rule of general exclusion."
The purpose of this Article is to examine how federal circuit courts of appeals' references to the inclusive structure of Rule 404(b) have become counterproductive to a faithful application of the rule. Specifically, characterizing Rule 404(b) as a "rule of inclusion" has led courts to imply that the rule creates a presumption in favor of admissibility. As is discussed in Part II, the structure of Rule 404(b) is inclusive, to the extent that the rule prohibits other acts evidence for the purpose of proving propensity but does not prohibit other acts evidence if offered for another purpose. But as Part III demonstrates, many recent opinions of the federal circuit courts of appeals contain references to Rule 404(b)'s inclusive structure that are misleading because they suggest that "inclusive" means "presumed admissible." Part IV discusses recent cases from several federal circuit courts of appeals that recognize both the general problem of over-admitting other acts evidence, as well as the specific problem of referring to Rule 404(b) as a "rule of inclusion." Part V proposes that one way to improve the federal courts' application of Rule 404(b) is for the courts to shift their focus from the inclusive structure of the rule and instead focus on the exclusionary purpose of the rule.
Dora W. Klein, “Rule of Inclusion" Confusion, 58 San Diego L. Rev. 379 (2021).