Marquette Law Review Volume 104 Issue 3 Spring 2020 Article 7 Spring 2021 It’s Time to Put Character Back into the Character-Evidence Rule Steven Goode Follow this and additional works at: https://scholarship.law.marquette.edu/mulr Part of the Criminal Law Commons Repository Citation Steven Goode, It’s Time to Put Character Back into the Character-Evidence Rule, 104 Marq. L. Rev. 709 (2021). Available at: https://scholarship.law.marquette.edu/mulr/vol104/iss3/7 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact
[email protected]. IT’S TIME TO PUT CHARACTER BACK INTO THE CHARACTER-EVIDENCE RULE STEVEN GOODE Federal Rule of Evidence 404(b), which governs the admissibility of other- acts evidence, is a mess, and recently-promulgated amendments will not fix it. The amendments fail to address the two major problems underlying Rule 404(b). First, the rule is based on a categorical judgment about the relative probative value and unfair prejudice of other-acts evidence when offered as character evidence; that is, to prove the defendant acted in accordance with his or her character. In numerous cases, however, other-acts evidence is highly probative and the rule’s categorical judgment is decidedly wrong. Not surprisingly, courts often admit such evidence, typically by erroneously denying that the evidence is being offered to prove the defendant acted in accordance with his or her character.