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- Title
The (Mis)application of Rule 404(b) Heuristics.
- Authors
KLEIN, DORA W.
- Abstract
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.
- Subjects
UNITED States; FEDERAL Rules of Evidence (U.S.); TRIAL courts; HEURISTIC algorithms; HUDDLESTON v. United States (Supreme Court case); LEGAL evidence; ADMISSIBLE evidence
- Publication
University of Miami Law Review, 2018, Vol 72, Issue 3, p706
- ISSN
0041-9818
- Publication type
Article