Hillel J. Bavli (Southern Methodist University - Dedman School of Law) has posted Trial By Character (75 Emory Law Journal (forthcoming 2025)) on SSRN. Here is the abstract:
In this Article, I argue that courts regularly deviate from Federal Rule of Evidence 404(b), which prohibits character evidence--evidence of a defendant's past misdeeds to prove that the defendant acted in conformity with a certain character trait on the occasion in question. These deviations undermine the fairness of a trial and the presumption of innocence. My Article addresses these deviations in three ways. First, I explain how courts have misinterpreted Rule 404(b)--an error that I call the permitted-purpose fallacy--and have fortified this misinterpretation with a host of flawed principles and precedent. Second, I conduct the first empirical study to systematically examine (1) the prevalence of incorrect evidentiary admissions based on the permitted-purpose fallacy, and (2) the ineffectiveness of a 2020 amendment to Rule 404 for resolving it. I find that a staggering 40-50% of evidentiary admissions under Rule 404(b) are incorrect--they constitute misapplications of the rule to admit impermissible character evidence. Third, I propose three reform measures, including amending Rule 404(b), addressing the permitted-purpose fallacy in the courts, and removing underlying pressure on courts to deviate from Rule 404 in the first place.
Recommended.
