"Rule of Inclusion" Confusion

The purpose of this Article is to examine how federal circuit courts of appeals’ references to the inclusive structure of Rule 404(b) have become counterproductive to a faithful application of the rule. Specifically, characterizing Rule 404(b) as a “rule of inclusion” has led courts to imply that the rule creates a presumption in favor of admissibility. As is discussed in Part II, the structure of Rule 404(b) is inclusive, to the extent that the rule prohibits other acts evidence for the purpose of proving propensity but does not prohibit other acts evidence if offered for another purpose. But as Part III demonstrates, many recent opinions of the federal circuit courts of appeals contain references to Rule 404(b)’s inclusive structure that are misleading because they suggest that “inclusive” means “presumed admissible.” Part IV discusses recent cases from several federal circuit courts of appeals that recognize both the general problem of over-admitting other acts evidence, as well as the specific problem of referring to Rule 404(b) as a “rule of inclusion.” Part V proposes that one way to improve the federal courts’ application of Rule 404(b) is for the courts to shift their focus from the inclusive structure of the rule and instead focus on the exclusionary purpose of the rule.