Correcting Federal Rule of Evidence 404 to Clarify the Inadmissibility of Character Evidence

May 1, 2024

Courts misinterpret Federal Rule of Evidence 404(b)(2) as an exception to Rule 404(b)(1)’s prohibition on character evidence rather than a mere clarification that emphasizes the permissibility of other-acts evidence whose relevance does not rely on propensity reasoning.  This misinterpretation turns the rule against character evidence on its head by effectively replacing Rule 404 with a Rule 403 balancing—and one that incorrectly treats character inferences as probative rather than prejudicial, thereby favoring admissibility rather than exclusion.  Consequently, as currently interpreted, Rule 404(b)(2) generates substantial unpredictability and verdicts based on conduct not at issue in a case.

I therefore propose that the Advisory Committee on Evidence Rules amend Rule 404(b)(2) to clarify the meaning of this rule as permitting only other‑acts evidence whose relevance does not rely on a character inference—that is, whose chain of inferences is free of propensity reasoning.  I show how the Advisory Committee can restore Rule 404’s logic and effectiveness through a straightforward modification in the language of Rule 404(b)(2).  I then address the doctrine of chances—which pertains to a uniquely probative form of character evidence offered to prove the absence of chance or accident—and I explain why it should not cause reluctance to adopt my primary proposal.  Then, as a secondary proposal (not required for the adoption of my primary proposal), I recommend amending Rule 404(b)(2) to establish a limited exception to Rule 404 for this type of evidence.  I argue that my proposals to amend Rule 404(b)(2) would restore Rule 404’s meaning and intention to exclude evidence whose relevance relies on character reasoning and, in turn, would create fairer and more accurate trials.