Trial by Character

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 offered 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. The Article addresses this problem in three ways. First, it explains how courts have misinterpreted Rule 404(b)—an error that I call the permitted-purpose fallacy—and how they have fortified this misinterpretation with a body of flawed principles and precedent.

Second, it reports the results of an empirical case review examining the prevalence of improper evidentiary admissions based on the permitted-purpose fallacy and the ineffectiveness of a 2020 amendment to Rule 404 in resolving that misinterpretation. The findings show that, notwithstanding the amendment, improper admissions of character evidence under Rule 404 remain common, with as many as 40–48% of admissions under Rule 404(b) reflecting misapplications of the rule resulting in the erroneous admission of character evidence. Third, the Article proposes three reforms: amending Rule 404(b) to clarify its meaning and intended function, addressing the permitted-purpose fallacy directly in judicial reasoning, and removing the underlying pressure on courts to deviate from Rule 404 in the first place.