It is a fundamental principle of the American justice system that a defendant should be judged on the facts of the case at issue and not for the defendant’s general character or past indiscretions. Federal Rule of Evidence 404, which prohibits character evidence, addresses this issue. Rule 403 represents another principle of the justice system: the legal system favors admissibility of evidence over its exclusion. There are some exceptions to this principle, including when evidence is so highly prejudicial that it outweighs the benefits of its admission. As 404(b) character evidence is almost always highly prejudicial to the defendant, trial judges are often asked to use their discretion to decide when to admit 404(b) evidence.

The lower courts often have been inconsistent when applying Rule 403 to 404(b) evidence. Understanding when to admit or exclude 404(b) evidence becomes more complicated when the defendant offers to concede to a point so that the prosecution does not need to introduce 404(b) evidence in order to prove it. In Old Chief v. United States, the U.S. Supreme Court addressed this issue. The holding, however, was narrowly tailored to its facts and provided little guidance in other cases. In addition, the Court introduced new concepts for trial judges to consider when deciding whether to admit 404(b) evidence. This Note examines the discrepancies in lower courts’ methods for admitting 404(b) evidence in light of Old Chief and offers a unifying and comprehensive test for trial judges to use when faced with this issue.