Josiah Beamish


Federal Rule of Evidence 404(b) is a constant source of confusion, contempt, and convoluted reasoning. Rule 404(b) prohibits evidence of an individual's prior bad acts when used to prove conformity with a character trait. No Federal Rule of Evidence generates more appellate pages. This Comment argues that there are foundational issues with a rule that generates so much dispute. That proposition becomes even more evident through examination of the murder conviction of Harold Henthorn. The government's case against Mr. Henthorn relied heavily on the introduction of evidence surrounding his first wife's death. That evidence of prior uncharged conduct-404(b) evidence-became the focus of Mr. Henthorn's appeal.

This Comment argues for a reworked Federal Rule of Evidence 404(b) that focuses on clarity and the realities of the jury trial system. The Henthorn case provides an instructive example of how 404(b) creates confusion and provides an example of how a new rule might operate. It no longer makes sense to allow 404(b) to remain unchanged, and this Comment presents a new rule that considers all sides of the debate surrounding prior bad act evidence.

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