Law Commons^™

One Step Backward: The Ninth Circuit's Unfortunate Rule 404(B) Decision In United States V. Lague, Dora Klein

Faculty Articles

The federal courts' current approach to character evidence is widely recognized as problematic. Although Rule 404(b)(1) categorically prohibits the use of character evidence, Rule 404(b)(2) presents a list of examples of permitted purposes that has tempted courts to view the admission of other-acts evidence as proper so long as the evidence is merely relevant to a non-character purpose. Additionally, courts have misconstrued the inclusive structure of Rule 404(b) as creating a presumption

in favor of admissibility. Recent efforts to correct this mistakenly permissive view include decisions by several of the federal circuit courts of appeals recognizing that Rule 404(b) requires …

“Rule Of Inclusion" Confusion, Dora Klein

Faculty Articles

Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …

The (Mis)Application Of Rule 404(B) Heuristics, Dora W. Klein

Faculty Articles

In all of the federal circuit courts of appeals, application of Rule 404(b) of the Federal Rules of Evidence has been distorted by judicially-created "tests" that, while intended to assist trial courts in properly admitting or excluding evidence, do not actually test for the kind of evidence prohibited by this rule. Rule 404(b) prohibits evidence of "crimes, wrongs, or other acts" if the purpose for admitting the evidence is to prove action in accordance with a character trait. This evidence is commonly referred to as "propensity" evidence, or "once a drug dealer, always a drug dealer" evidence.

This Article examines …

Exemplary And Exceptional Confusion Under The Federal Rules Of Evidence, Dora W. Klein

Faculty Articles

This Article proposes that the final provisions of Rule 407 and 411, which provide a list of examples of permitted purposes for which a court may admit evidence, are asking for trouble--specifically, the trouble that courts will interpret the list not as examples, but as a specially enumerated, exhaustive list of exceptions.

The Texas Rules Of Evidence: Something Old, Something New, And Something Changed, David A. Schlueter

Faculty Articles

On November 19, 2014, the Texas Supreme Court issued an Order amending all of the Texas Rules of Evidence, effective April 1, 2015. In its Order, the Court explained that the amendments were part of an effort to “restyle” the Rules, to make them as consistent as possible with the Federal Rules of Evidence, and to make them easier to understand.

The 2015 amendments to the Texas Rules of Evidence are a commendable step toward making the Rules more user-friendly. It is clear to even the casual reader that the reformatting of the Rules, through the use of consistent and …

Evidence, David A. Schlueter

Faculty Articles

This article addresses some of the more significant evidence cases decided by the Fifth Circuit during the survey period.' Before turning to the cases themselves, it is important to note at the outset that like other federal courts, the Fifth Circuit is generally not inclined to reverse a case on an evidentiary error. It should not be surprising then that in most of the cases which follow, the court implicitly deferred to the decision of the trial judge in deciding whether a certain piece of evidence was admissible.

Evidence, Fifth Circuit Symposium, David A. Schlueter

Faculty Articles

This article reviews decisions by the United States Court of Appeals for the Fifth Circuit on evidence issues and concludes that if an attorney has any hopes of obtaining appellate relief on an evidentiary issue, it is essential that the issues be presented concisely and completely to the trial court. The appellate courts will not reverse an evidentiary ruling of a trial court, even if the trial court has erred. This deference to the trial court is in recognition of the hundreds of rulings on evidence that the trial court must conduct within the course of a trial. In order …