St. Mary's Law Journal


Congress enacted the Federal Rules of Evidence to govern evidentiary procedures and “eliminate unjustifiable expense and delay.” In criminal cases, for example, Federal Rule of Evidence 404(b) seeks to prevent prosecutors from improperly introducing a defendant’s past misdeeds. Nevertheless, prosecutors often attempt to introduce a defendant’s past misconduct to suggest that a defendant has a propensity to commit crimes, which is improper character evidence. Unsurprisingly, 404(b) is one of the most litigated evidence rules and has generated more published opinions than any other subsections of the Rules. And despite efforts to amend Rule 404(b), the rule has remained virtually untouched. This comment proposes two solutions to limit prosecutors from admitting 404(b) evidence.

First, Rule 404(b) must be amended to exclude a defendant’s prior bad acts unless the defendant “opens the door.” The rule should also include a misuse provision, which allows the trial court to render a mistrial if it determines the prosecution improperly introduces 404(b) evidence.

Alternatively, Rule 404(b) must strengthen the burden of proof and sharply limit the Government’s ability to use a defendant’s prior acts. Further, courts must enforce current disciplinary measures under the Model Code of Professional Responsibility and prevent prosecutors from injecting prejudicial evidence into the defendant’s trial. Strengthening the burden of proof and limiting the Government from misusing a defendant’s prior bad acts, while enforcing misconduct provisions will solidify the presumption of innocence and protect a defendant’s right to a fair and impartial trial.

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St. Mary's University School of Law


William Todd Keller, Jr.