Loyola of Los Angeles Law Review
The federal courts' current approach to character evidence is widely recognized as problematic. Although Rule 404(b)(1) categorically prohibits the use of character evidence, Rule 404(b)(2) presents a list of examples of permitted purposes that has tempted courts to view the admission of other-acts evidence as proper so long as the evidence is merely relevant to a non-character purpose. Additionally, courts have misconstrued the inclusive structure of Rule 404(b) as creating a presumption
in favor of admissibility. Recent efforts to correct this mistakenly permissive view include decisions by several of the federal circuit courts of appeals recognizing that Rule 404(b) requires a more careful approach, as well as a revision to Rule 404(b) itself. Despite these efforts, some federal circuit court opinions continue to mistakenly regard Rule 404(b) as nothing more than a minor impediment to the admission of other-acts evidence a speed bump rather than a roadblock. The recent opinion of the Ninth Circuit Court of Appeals in the case United States v. Lague is an unfortunate example of this approach. This opinion makes both of the typical Rule 404(b) mistakes it allows mere relevance to a non-character purpose to substitute for careful analysis, and it uses the rule's inclusive structure to justify the lack of careful analysis. Additionally, the published opinion contributes to a disagreement among several of the federal circuit courts of appeals regarding the admissibility of practice-wide data in prosecutions for unlawfully prescribing controlled substances.
Dorie Klein, One Step Backward: The Ninth Circuit's Unfortunate Rule 404(b) Decision in United States v. Lague, 55 Loy. L. A. L. Rev. 739 (2022).