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There is a war raging over the admissibility of the prior bad acts of criminal defendants in federal trials. While many circuits treat Federal Rule of Evidence 404(b) as a rule of “inclusion” and liberally admit such prior bad-acts evidence with predictably explosive effects on criminal juries, a few circuits are developing rigorous standards designed to foreclose prosecutorial use of such bad-acts evidence. This Article chronicles the well-documented permissive admission of the prior bad acts of criminal defendants notwithstanding the prohibition on such evidence by Federal Rule of Evidence 404(b)(1), as well as recent efforts by some federal circuits to restrict such evidence. In light of these contemporary developments, the Judicial Conference Advisory Committee on Evidence Rules is currently considering amendments to Federal Rule of Evidence 404(b) to restore the intended exclusionary purpose of the Rule. This Article details several drafting alternatives being considered by the Committee, as well as the likely costs and benefits of each, and proposes a simple and elegant fix for what ails Rule 404(b)—a more protective balancing test that admits the prior bad acts of criminal defendants only when their probative value outweighs any unfair prejudice to the defendant. Tipping the scale in favor of exclusion of prior bad-acts evidence would restore the protective purpose of Rule 404(b), while continuing to permit the government to admit such evidence in appropriate and necessary circumstances. This balance would bring Rule 404(b) into alignment with existing Federal Rule of Evidence 609, which allows the felony convictions of testifying criminal defendants to be admitted for impeachment purposes only when their probative value outweighs unfair prejudice. This Article takes on the thorny contemporary issues surrounding the admissibility of prior bad-acts evidence and identifies the optimal amendment to Federal Rule of Evidence 404(b). This amendment would resolve the current conflict among the federal circuits and restore the prohibition on trial by character, which is a cornerstone of the American criminal process.

Approximately 75% of DNA exonerations are cases involving mistaken identification. Lab-based experiments by psychological scientists have informed the legal system about ways to reduce the misidentification problem. One of these ideas, the sequential lineup (which shows the witness one lineup member at a time), increases the ratio of accurate to mistaken identifications compared with the traditional simultaneous lineup (which shows the witness all lineup members at once). Gronlund, Wixted, and Mickes (2014, this issue) noted that the improvement in this ratio from the sequential procedure is the result of a conservative criterion shift rather than of an increase in discriminability. Although data support that interpretation, the data do not negate the fact that probative value is higher for the sequential lineup. The question for policymakers is whether a more conservative decision criterion is desirable. Considerations include the natural asymmetry between the errors of mistaken identification versus nonidentification and the relevance of an accumulated body of archival data that suggest that witnesses in actual cases are using loose decision criteria for making identifications.

This paper discusses mathematical modeling of the value of particular items of evidence. We demonstrate that such formal modeling has only limited use in explaining the value of legal evidence, much more limited than those investigators who construct and discuss the models assume, and thus that the conclusions they draw about the value of evidence are unwarranted. This is done through a discussion of several recent examples that attempt to quantify evidence relating to carpet fibers, infidelity, DNA random‐match evidence, and character evidence used to impeach a witness. This paper makes the following contributions. Most important, it is another demonstration of the complex relationship between algorithmic tools and legal decision making. Furthermore, at a minimum it highlights the need for both analytical and empirical work to accommodate the reference‐class problem and the risk of failing to do so.

Judges and juries are frequently called upon to evaluate a party's actions in retrospect—with the benefit of hindsight. Traditionally, courts and scholars have been understandably wary about how hindsight bias influences verdicts, focusing on how to keep outcome information away from jurors and how to minimize its influence on adjudication. But outcome information can be probative evidence: Bad outcomes can be indicative of bad decisionmaking. In this Essay, I aim to rehabilitate the use of outcome information by conceptualizing it as a new category of evidence: hindsight evidence. First, I develop a framework for deciding how much weight to afford hindsight evidence and whether it should be admitted to a jury under Rule 403, which requires judges to weigh probative value against prejudicial impact. As for relevance and probative weight, I show that hindsight evidence is probative to the extent that facts supporting one party's theory of the case have a greater tendency to generate that outcome than facts supporting the other party's theory. As for prejudice, I review the research on hindsight bias and the factors that mitigate its impact. Finally, I apply this framework to four paradigmatic examples from diverse areas of the law—civil rights, contracts, special education law, and civil procedure—where courts have disagreed about whether to consider hindsight evidence. Ultimately, I conclude that a deeper theoretical understanding of how hindsight evidence operates will allow courts to embrace its value more readily.

D. Davis and W. C. Follette (2002) purport to show that when \"the base rate\" for a crime is low, the probative value of \"characteristics known to be strongly associated with the crime ... will be virtually nil.\" Their analysis rests on the choice of an arbitrary and inapposite measure of the probative value of evidence. When a more suitable metric is used (e.g., a likelihood ratio), it becomes clear that evidence they would dismiss as devoid of probative value is relevant and diagnostic.

A peculiar principle of legal evidence in common law systems is that probative evidence may be excluded in order to increase the accuracy of fact-finding. A formal model is provided that rationalizes this principle. The key assumption is that the fact-finders (jurors) have a cognitive cost of processing evidence. Within this framework, the judge excludes evidence in order to incentivize the jury to focus on other, more probative evidence. Our analysis sheds light on two distinctive characteristics of this type of exclusionary rules. First, that broad exclusionary powers are delegated to the judge. Second, that exclusion on grounds of undue prejudice is peculiar to common law systems. Both features arise in our model.

This paper responds to criticisms/misconstruals of our measure of the maximum probative value of evidence (D. Davis & W. C. Follette, 2002), and our conclusions regarding the potentially prejudicial role of \"intuitive profiling\" evidence, including motive. We argue that R. D. Friedman and R. C. Park's (2003) criticisms and example cases are largely based on inappropriate violation of the presumption of innocence. Further, we address the merits of our absolute difference measure of probative value versus those of the Bayesian likelihood ratio championed by D. H. Kaye and J. J. Koehler (2003). We recommend methods for presentation of measures of evidence utility that convey complexities of interdependence between new and existing evidence. Finally, we propose a \"probable cause\" standard for admission of potentially prejudicial evidence, dictating that admissibility of such evidence should be contingent upon other substantial evidence of guilt.

This essay responds to D. Davis and W. C. Follette (2002), who question the value of motive evidence in murder cases. They argue that the evidence that a husband had extramarital affairs, that he heavily insured his wife's life, or that he battered his wife is ordinarily of infinitesimal probative value. We disagree. To be sure, it would be foolish to predict solely on the basis of such evidence that a husband will murder his wife. However, when this kind of evidence is combined with other evidence in a realistic murder case, the evidence can be quite probative. We analyze cases in which it is virtually certain that the victim was murdered but unclear who murdered her, and in which it is uncertain whether the husband murdered the wife or she died by accident. We show that in each case motive evidence, such as a history of battering or of infidelity, can substantially increase the odds of the husband's guilt. We also consider the actual case on which Davis and Follette base their paper. We argue that testimony of Davis on the basis of the analysis presented in their paper was properly excluded, for it would have been misleading and unhelpful.