Yet Another Problem with Rule 404(b)? Why the Advisory Committee Should Codify a Higher Initial Burden for Prior Acts Evidence

The admissibility of character evidence is one of the most controversial and debated topics in the law of evidence and criminal procedure. Although Federal Rule of Evidence 404 purports to impose a high burden on litigants attempting to introduce character evidence, other rules and United States Supreme Court decisions have diminished federal trial judges’ gatekeeping function over the admissibility of this evidence. Specifically, the Supreme Court’s 1988 decision in Huddleston v. United States allowed criminal prosecutors seeking to introduce a defendant’s prior bad acts under Rule 404(b) to put forth a de minimis preliminary showing that the defendant actually committed the prior bad act. Unlike other preliminary issues of admissibility, Huddleston held that Rule 404(b) evidence must be treated as a matter of conditional relevance. This allows such evidence to be admitted provided the proponent introduces sufficient preliminary facts on which a jury could find that the prior act occurred by a preponderance of evidence. Following Huddleston, several state courts declined to adopt the Court’s reasoning and instead put forth more stringent hurdles for introducing a defendant’s prior bad acts. This Note argues that the Advisory Committee for the Federal Rules of Evidence should amend Rule 404(b) and adopt the more rigorous approaches taken by some states because the current federal system imposes too light a burden on prosecutors and neglects the common law aversion towards character evidence.