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The general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to evidence of an accused’s uncharged crimes.

As a 2023 United Kingdom Law Commission report points out, that country has abandoned a rigid, formal character prohibition and allows trial judges to balance the probative value of specific acts evidence against the incidental probative dangers of the evidence. The American Federal Rules of Evidence do not go that far, but in sexual assault and child abuse cases Rules 413-15 carve out exceptions to the character prohibition. Many leading American commentators have contended that the United States should move farther in the direction of narrowing the prohibition. In 2021, drawing on the work of previous commentators, Professor Steven Goode published an article making a persuasive case that federal courts ought to admit highly probative evidence of very specific propensities. However, Rule 404(b) seems to stand in the way of doing so.

In early 2023, the lead author of this article and a coauthor published an article discussing the admission of prior racist acts in hate crime prosecutions. To a degree the article dovetails with Professor Goode’s contention; the article develops an argument that if adopted, could move American character law in the direction Professor Goode favors. The 2023 article presents seven different “gateways” for introducing evidence of prior racist acts. One potential gateway is of special importance in the current Age of Statutes. That gateway is a novel contextual statutory construction argument: Since Federal Rule 404(a) governing reputation and opinion character evidence states the general prohibition as applying to “character trait[s]” as well as “character” but Rule 404(b) governing specific acts testimony mentions only “character,” proof of a specific character trait could be considered a permissible purpose under Rule 404(b).

This is essentially a contextual statutory construction argument. This is the textualist era. In this era contextual arguments based on related statutes carry special force. Textualists maintain that extrinsic legislative history materials are entitled to less weight because they are subject to manipulation by special interest groups and lack the force of law. Unlike those materials, contextual provisions enjoy the force of law; and assigning considerable weight to such provisions does not raise separation of powers concerns.

The authors of the 2023 article do not describe themselves as textualists or suggest that a court may embrace their argument only if the court subscribes to textualism. However, the reality is that today textualism is clearly the dominant school of statutory interpretation, especially in federal court. Hence, the purpose of this article is to present a textualist analysis of the contextual statutory construction argument regarding the character/character trait distinction. The article reviews the pertinent text, contextual provisions, and extrinsic materials: the Advisory Committee Notes to Rules 404-05, 413-15, and 608-09.

The contextual argument is certainly viable. Rule 404(a) is a salient part of the context for interpreting Rule 404(b); the two provisions are very close together in the same Rule. However, there are other parts of the context, other related statutes; and a close examination of the wording of those statutes reveals that the drafters used “character” and “character trait” loosely in those provisions. The same inconsistent use of the terms is evident in the pertinent Notes. Thus, it cannot be said definitively whether by omitting “character trait” in 404(b) the drafters intended to signal that character trait evidence is admissible under 404(b).

The textualist analysis of the contextual argument demonstrates that one of the root causes of the present uncertainty about the scope of Rule 404’s character prohibition is a larger problem, namely, the loose usage in the pertinent Rules and Notes. The present article therefore identifies two possible courses of action for the Rules Advisory Committee. One is to provide working definitions of the terms, “character” and “character trait.” Commentators vary in their understanding of those terms; but given the inconsistent usage in the wording of the Federal Rules and the Notes, that variation is expectable. A second option would be for the Committee to invite a wider discussion of the policy issues that make the scope of the character prohibition such a controversial issue. The combination of Professor Goode’s 2021 article, the 2023 United Kingdom Law Commission report, and the recent 2023 article makes this an opportune time for that discussion. To be sure, resolving those issues would not be easy. However, in light of the enormous amount of time that the courts devote to disputes over Rule 404(b), addressing those fundamental issues might be worth the effort. If any Federal Rule deserves a hard look by the Committee, it is Rule 404(b).