Academic journal article The University of Memphis Law Review

The Time Is Right to Amend Rule 404(b)

Academic journal article The University of Memphis Law Review

The Time Is Right to Amend Rule 404(b)

Article excerpt

I. Introduction.........................................................................149

II. Federal vs. Tennessee Rule...............................................151

A. Federal.............................................................................151

B. Tennessee..........................................................................156

III. Rule 404(b) Should be Amended......................................160

I. INTRODUCTION

Rule 404(b) of the Tennessee Rules of Evidence ("Tennessee Rule 404(b)") bars the admission of evidence of "other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity with the character trait."* 1 2 In State v. Stevens,* 2 the Tennessee Supreme Court held that the word "person," as used in the rule, refers only to the defendant in a criminal case.3 In the twelve years that Stevens has been entrenched in Tennessee jurisprudence, and despite several opportunities to do so, the Tennessee Supreme Court has refrained from revisiting its decision.4 Unwilling to wait any longer for judicial modification, the Tennessee General Assembly recently passed the Channon Christian Act, a law that, when it went into effect on July 1, 2014, barred, in all criminal cases, the admission of "other acts" evidence of any person, not just those of the defendant, if the evidence is offered to prove that the person acted in accordance with the character trait reflected by that person's other acts.5 Although the General Assembly is to be commended for enacting this law, the legislation does not go far enough. Tennessee Rule 404(b) should be amended to make it clear that, like its similarly-worded, federal counterpart, it applies in both civil and criminal cases and that the word "person" is not limited to parties. This amendment would return to the rule the meaning intended for it when it was originally adopted in 1990.

Part II of this article contrasts the federal courts' treatment of Federal Rule of Evidence 404(b) ("Federal Rule 404(b)") with the Tennessee Supreme Court's treatment of Tennessee Rule 404(b). Part III explains why and how Tennessee Rule 404(b) should be amended in order to restore it to its original meaning.

II. FEDERAL VS. TENNESSEE RULE

A. Federal

In federal court, the evidence of an individual's conduct on another occasion is inadmissible to show that, on the specific occasion at issue in the trial, the individual displayed the same character that he exhibited on the other occasion. This is the command of Federal Rule of Evidence 404(b)(1).6 The rule applies to both civil and criminal cases7 and without regard to whether the "other acts"8 are those of a party or a non-party.9 Accordingly, in federal court, a party offering "other acts" evidence is prohibited (assuming a timely objection by the adversary) from introducing it and subsequently arguing: "This person's conduct on the other occasion shows that he has a propensity for behaving in the manner my client has alleged here. His conduct on the other occasion shows that he is in fact the type of person who behaves as my client has alleged."

The federal rule's prohibition against this "propensity" use of "other acts" evidence is not premised on a lack of probative value. If propensity evidence lacked probative value, there would be no need for Federal Rule 404(b). Propensity evidence would simply be irrelevant under Federal Rule 402.10 The use of "other acts" evidence to show propensity is barred precisely because of the strength of its probative value.* 11 The "'indubitable relevancy' [of character evidence] is based on the teaching of human experience that a 'bad' man is more likely to commit crimes than a 'good' one."12 "And so, the risk looms large that a party may be found guilty or liable because of the jury's willingness to assume present guilt from some prior misdeed."13 The rationale for the rule is that our justice system should not accept this risk. …

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