17 Rev. Litig. 181

Federal Rule of Evidence 404(b): The Fictitious Ban on Character Reasoning from Other Crime Evidence

Andrew J. Morris

Morris analyzes Rule 404(b)’s ban on propensity reasoning and the propensity fallacy it creates. While the rule purports to ban propensity evidence, this article notes that, contrary to Rule 404(b), courts often admit this evidence. Two common types of error – in regards to this propensity fallacy – are discussed at length: the use of bad acts evidence to prove the mental element in “intent cases;” and, in cases where the mens rea and actus reus elements are already established, the use of bad acts evidence to establish the identity of the actor. Both errors, Morris argues, assume continuity of the character. The article uses the doctrine of chances to better explain why courts should not assume such continuity. In his analysis of this doctrine, Morris provides a contrary view to that of Professor Imwinkelried, who contends that the doctrine of chances does not involve propensity reasoning. Rather, Imwinkelried argues that the doctrine rests on objective probability. Morris disagrees, using mathematical probability to show that the doctrine does not address the possibility that some acts might be intentional while others would be accidental. At the end of the article, Morris compares Rule 404(b) to the English equivalent.

 

    The first sentence of Federal Rule of Evidence 404(b) states: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." n1 This sentence codifies the common law "propensity rule," n2 which forbids character inferences based on bad acts evidence. n3 As this Article will show, however, courts routinely permit precisely such inferences, thus violating the propensity rule and the plain language of Rule 404(b).     Anglo American scholars assign the propensity rule the utmost importance. n4 Wigmore praised its adoption as "a revolution in the theory of criminal trials" and "one of the peculiar features, of vast moment, that distinguishes the Anglo American from the Continental system of evidence." n5 This "revolutionary" rule has undeniable practical importance. Rule 404(b) is probably the most litigated Federal Rule of Evidence. n6 Decisions on the admissibility of bad acts evidence n7 may determine more criminal cases than any other type of evidence, n8 and bad acts evidence plays a central role in many negligence, harassment, and discrimination cases. n9 One authority's identification of the scope of Rule 404(b) as "the single most important issue in contemporary criminal evidence law," certainly seems apt. n10     As one would expect, scholars produce a steady stream of works about Rule 404(b). They take up a variety of issues, in particular, whether Rule 404(b)'s flat ban on propensity reasoning should be liberalized or even lifted, n11 and the proper relationship between Rule 404(b) and the general balancing test of Rule 403. n12 While discussing these policy questions, however, writers have failed to address a logically prior descriptive point. Their discussions almost invariably assume that Rule 404(b) has the practical effect of banning propensity reasoning; n13 as this Article will show, however, this view of the Rule's practical effect is wrong. Contrary to this conventional view, courts routinely admit bad acts evidence precisely for its relevance to defendant propensity. n14 Hence, while discussions abound about whether we should liberalize our categorical ban on propensity, in practice, the courts already have liberalized the rule dramatically.     This means that the putatively categorical ban on character evidence has little effect on how courts decide cases. This problem exists because the language of Rule 404(b) itself accepts the conventional fallacy that certain common uses of bad acts evidence to show identity, for instance do not depend on propensity reasoning, and thus, do not run afoul of the propensity ban. The result of this fallacy is devastating for the Federal Rules of Evidence. It robs Rule 404(b) of any coherent purpose, and produces grave consequences for thousands of criminal and civil defendants. If I am correct about this error, countless defendants have been confronted with evidence admitted in violation of the plain language of Rule 404(b). Part I of this Article sets out the descriptive claim that the reasoning employed in 404(b) cases is often propensity reasoning, despite the flat prohibition on such reasoning in Rule 404(b). It sets out the conventional view that the Rule effectively bans propensity reasoning, then explains why that view is wrong. Part II reviews typical bad acts cases and explains how they necessarily depend on propensity reasoning, thus violating the plain language of Rule 404(b). It argues that bad acts evidence, which is behavioral evidence, can have force only if the law assumes that behavior does not change. Next, Part III closely analyzes the "doctrine of chances," which scholars accept as underpinning the relevance of bad acts evidence, and provides a short mathematical proof compelling the conclusion that the doctrine depends on propensity reasoning. Finally, as powerful evidence that this Article's thesis should be taken seriously, Part IV points to the English acceptance of that thesis. The argument that Rule 404(b) cases routinely employ the forbidden reasoning may sound radical because of the argument's far reaching consequences, but it is far from original. English law has come to that conclusion, and as a result, English courts have discarded the propensity rule entirely.    I. The Words of Rule 404(b) Categorically Prohibit Character Reasoning. Rule 404(b) states the ban on propensity evidence in two sentences:    Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ... n15 The Rule's main purposes are well established: to protect the presumption of innocence, to limit the evidence to the act alleged, n16 and to foster efficiency at trial by avoiding mini trials on the uncharged conduct. n17 These purposes are, however, in tension with another goal of the Federal Rules of Evidence: to advance the search for the truth by relying on any evidence that tends to affect the probability that a fact at issue is true or false. n18     In an effort to accommodate these conflicting aims, Rule 404(b) purports to divide evidence into two categories according to the basis of its proposed relevance. n19 The first sentence flatly bans evidence whose relevance depends on character or propensity reasoning. n20 The second sentence then states that evidence relevant for any "other" purpose remains admissible. n21     Rule 404(b)'s categorical structure assumes that a judge can determine the admissibility of evidence by simply identifying the type of reasoning that supports its relevance, then assigning that type of reasoning to one of the two categories in the Rule. The drafters apparently expect a judge simply to ask whether this is an instance of propensity (forbidden) reasoning or non propensity (permissible) reasoning. The Rule provides the major premise (evidence to prove character is prohibited), the court's classification of evidence provides the minor premise (the proffered evidence is character evidence), and the result, the Rule suggests, is a valid syllogism that produces a legally valid answer (the proffered evidence is inadmissible). n22     Without exception, all federal circuits (and all states) n23 accept this division of the evidentiary field into air tight propensity and non propensity categories. n24 The courts invariably accept that evidence fitting into the first section is flatly inadmissible while evidence fitting into the second section is presumptively admissible. n25 (Admissibility is presumptive, rather than conclusive, only because it remains subject to the general balancing of Rule 403.)     The leading treatises similarly accept this two part division. Prominent examples include Weinstein's Evidence, which states the traditional rule against use of propensity evidence, n26 then provides seriatim summaries of the purportedly non propensity categories n27 (but that, in fact, commonly involve propensity inferences, as this Article explains below). n28 Similarly, the Federal Rules of Evidence Manual states without comment that Rule 404(b) bars any "infer[ence] from behavior on one occasion of something about the nature of a person." n29 Other leading treatises also accept the propensity/non propensity dichotomy, n30 as does the American Bar Association. n31 Law reviews contain a few suggestions that some Rule 404(b) cases permit propensity reasoning, but commentators have rarely, if at all, recognized the seriousness of the fact that every day courts admit exactly the evidence that Rule 404(b) purports to ban. n32 Although one or two American writers have raised this argument (one almost in passing), no writer has taken the important step of pointing out that, if the argument is correct, courts are routinely violating the Federal Rules of Evidence. n33 I now turn to the propensity fallacy.    II. Character Is an Essential Link in the Most Common Uses of Bad Acts Evidence. To comply with the plain words of Rule 404(b), courts must refuse to admit any evidence whose relevance depends on propensity reasoning. Even a quick run through the case reports, however, turns up abundant evidence that courts routinely admit such evidence. n34     Bad acts evidence can bear on propensity in a number of logically distinct ways; as a result, the case law is rife with errors. This Article discusses two of the more common types of errors: use of bad acts evidence to prove the mental element of an offense or a tort ("intent" cases); and use, in cases in which actus reus and mens rea are established, to prove the identity of the actor ( "identity" cases). The second sentence of Rule 404(b) expressly permits both uses.    A. "Intent" Cases The larger class of the two is the "intent" class of cases. n35 Within that class, perhaps the most striking illustrations of the propensity rule's fallaciousness come from drug cases. n36 There, evidence of prior drug activity pours in unexamined on the rationale that, as long as the evidence is probative of "intent," the evidence does not involve the forbidden reasoning. n37 Consider a typical case, United States v. Kills Enemy. n38 There the court admitted evidence of several earlier marijuana sales as probative of whether the defendant, charged with possession of cocaine with intent to distribute, had mens rea as to the cocaine offense. As is common, the court failed to explain how the evidence of marijuana sales could, without employing a propensity inference, increase the probability that the defendant had possessed the cocaine with criminal intent. n39 In fact, as is common in Rule 404(b) cases, n40 the court failed to explain its reasoning at all.     Cases like Kills Enemy are commonplace. Courts even go as far as to repeatedly generalize that evidence of ""the use of prior drug involvement to show plan, motive or intent in a drug trafficking offense is appropriate.'" n41 Despite the courts' repetition of this principle, it is fatally flawed; its application almost always violates Rule 404(b). What chain of reasoning can link the prior drug history of Kills Enemy to the charged crime other than one that infers that the defendant has a drug related propensity, and that based on this propensity, the jury can disbelieve him when he denies criminal intent as to the latest drug incident? There is no propensity free chain. The earlier drug use, which is behavioral evidence, can be relevant only if we assume that the defendant's behavior forms an unchanging pattern. In the words of Rule 404(b), the drug history is relevant only because it "prove[s] the character of" the defendant n42 and supports the inference that, in the case at issue, the defendant acted consistent with that character. n43     We can describe this reasoning process in other terms as well, but we cannot dislodge propensity from its center. For instance, speaking in lay terms, we are sometimes willing, although hesitant, to believe a defendant caught once with drugs who protests that he is the victim of a mistake. We are far more skeptical, however, of a defendant who has been caught with drugs twice. The reason, it seems hard to deny, is that we believe that the existence of two separate incidents is not a coincidence but tells us something about a continuing quality of the defendant's character. As Wigmore explains, this is "the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all." n44     Wigmore's comment suggests another way of expressing the reasoning process: the language of probability. n45 As I will show, the formal language of probability usefully illustrates the assumptions at work and demonstrates the essential role of propensity reasoning in intent cases. n46     The key to this probability reasoning is the basic principle called the "multiplication rule." n47 According to this rule, when events x and y are independent, the probability of the occurrence of both of them is equal to the product of their individual probabilities.     Consider repeated flips of a coin. On any given flip (or "trial") there is a 50/50 chance that a coin will land heads. The probability of two consecutive flips both turning up heads is 50% x 50%, which equals 25%, or 1 in 4. For four flips, the probability that the result will be heads every time is 50% x 50% x 50% x 50%, which equals 6.25%, or 1 in 16. The upshot is that solid mathematical ground exists for our intuition that, at some point, we suspect that someone who repeatedly flips a coin that turns up heads is not merely relying on chance; she has a trick coin.     So too with defendants in intent cases. There, the multiplication rule can calculate the probability that the repeated occurrence of certain events is consistent with pure chance (or "accident") rather than with some other cause. This implicit use of the multiplication rule often is referred to as the "doctrine of chances" because it makes inferences based on the chance that one defendant would be involved in repeat incidents. n48 The rule assesses the probability that one who has committed the actus reus for the charged offense did so without intent, given evidence that this defendant has committed the actus reus before.     Consider a drug case. Let us say that the probability of an "accident" that a person will have drugs in her possession without intent is 4%. n49 Evidence that this defendant was caught with drugs (for instance, marijuana) one other time reduces the probability that the defendant possessed cocaine without mens rea from 4% (1 in 25) to .16% (that is, 4% x 4% equals .16% [16/100 of 1%], or 1 in 625). n50 And if this defendant had still another possession, the odds that chance could explain these three events would be .00064% (.16% x 4% equals .00064% [64/100,000 of 1%], or 1 in 15,625) long odds indeed. Thus our intuition to treat the defendant's protests with skepticism is probably well founded, and it depends directly on the defendant's character. n51 As I explain in Part III, infra, the doctrine of chances produces these long odds only by assuming that the defendant's character remains constant across time.     The same is true of bad acts evidence in civil cases, where the evidence is commonly used to establish the mental element of torts. n52 For example, plaintiffs asserting discrimination and harassment claims routinely rely on propensity reasoning when they introduce statistical evidence, n53 evidence of specific previous legal findings, or even evidence of other allegations of discrimination or harassment. n54 As with the "intent" cases, there is no hypothesis that renders such evidence relevant to alleged harassment or discrimination other than that these types of evidence demonstrate the continuing propensities of the defendant. n55 Certainly, the above expression of criminal intent cases in terms of the doctrine of chances applies here unmodified.     By contrast with criminal cases, courts applying Rule 404(b) to civil cases more frequently acknowledge the propensity nature of their reasoning. For instance, in a recent sexual harassment case, Heyne v. Caruso, n56 the court held that testimony about other incidents was admissible to prove the defendant 's "motive" in discharging the plaintiff, because such testimony "is relevant and probative of [the defendant's] general attitude of disrespect toward his female employ ees, and his sexual objectification of them." n57 If "general attitude " is not propensity, what is? n58    B. "Identity" Cases Turning to "identity" cases, we again see that the relevance of bad acts evidence depends on propensity reasoning. n59 In these cases, evidence of an earlier crime is relevant because it shares critical but unusual features with the charged crime, thus suggesting that the defendant committed both. n60 For example, in United States v. Fields, n61 defendant Fields was charged with, among other things, passing a forged check. n62 It was undisputed that the check was forged; the only issue was the identity of the forger. The court admitted evidence that Fields earlier had passed a forged check that was identical to that passed in the charged crime in two critical respects: It was drawn on the same bank and it bore precisely the same name, "William T. Neilly." n63 Here, as in the intent cases, the reasoning is implicitly but undeniably probabalistic. n64 Given two incidents of the same peculiar actus reus, the odds appeared to be negligible that two different people performed them. Identity cases like Fields generally combine other crimes evidence with some other evidence that associates the defendant with the charged crime. n65 This combination of the improbability of the two crimes having such strong similarities and the improbability of the defendants being now tied to the charged crime by an independent thread serves to identify the suspect as the one who committed the charged crime.     Now to express this reasoning in rough terms of probability, assume, as apparently was the case, that the police arrested Fields without knowing of his earlier crime. n66 Say that the probability of arrest, given the city that Fields lived in, was 1 in 100,000. Assume also that, of the relevant population, 1 in 100,000 had written a bad check on this bank in the name "William T. Neilly." n67 Applying the multiplication rule to calculate the probability of these two events occurring together, the probability that he is the wrong man is 100,000 x 100,000, or 1 in 100 million. This may sound excessive, but in fact it rings true. As a practical matter, no one would harbor the slightest doubt that he was the right person if some evidence linked him to the charged crime, then it turned out from wholly independent sources that he had written an earlier bad check on the same bank and in precisely the same name. Certainly any television show would end there, with no doubt left that the discovery that he had committed precisely the same crime before closed the case. And as I explain in Part III below, the reasoning here reached by employing a variation of the doctrine of chances depends on propensity reasoning.     Finally, the similarities between the use of bad acts evidence and the use of physical evidence in identity cases further highlights the former's dependence on propensity reasoning. It goes without saying that the identification of defendants using fingerprints or blood samples depends on the assumption that physical characteristics remain constant across time. n68 In precisely the same way, identification based on bad acts needs an unchanging feature for the reasoning to work; in those cases, the assumed continuity of the defendant's character serves the role that the immutable nature of physical characteristics plays in the physical evidence cases. Without this assumption of continuity of character, we could not use other crimes evidence for purposes of identification any more than we could identify defendants by using fingerprints if they changed over time. n69    III. The Doctrine of Chances Depends on Character Reasoning.    A. The Doctrine of Changes Assumes the Defendants Act with the Same Intent (or Absense of Intent) in Each Incident My argument that the doctrine of chances depends on propensity reasoning requires that I address the contrary views of Professor Imwinkelried, probably the leading authority on Rule 404(b). Professor Imwinkelried agrees that the doctrine of chances can explain many uses of bad acts evidence but, contrary to this Article, he maintains that the doctrine of chances does not involve propensity reasoning. n70 His view is that the application of the doctrine of chances rests on an inference from statistical "objective probability" rather than "an inference based on the defendant's character." n71 The key to his argument is that this theory of liability does not ask "the trier of fact to infer the defendant's conduct (entertaining a particular mens rea) from the defendant's personal, subjective character." n72 Propensity, this argument suggests, is itself a conclusion rather than the basis of a conclusion.     I disagree. First, it seems apparent without extensive analysis that a jury which infers from evidence of repeated acta rea that the charged actus reus was no accident unavoidably uses a defendant's history to make inferences about character. n73 There simply is no difference between, on the one hand, looking at general population characteristics to reduce the odds of accident and, on the other hand, saying that a defendant is different from the rest of the population because she has a tendency (read: propensity) to commit this act. n74     Nor does it follow from the reasoning process' use of objective evidence about general populations that the process does not involve inferences about this defendant's propensities. The point of the evidence is this defendant's involvement in an unusual (that is, significantly greater than the average member of the relevant population) number of events. Although the characteristics of the average person provide a norm based on which we can determine whether the defendant has inordinately high involvement in suspicious events, the point of the reasoning process is the inordinate degree of involvement, not the norm. Drawing any inferences from the fact that this defendant has an above average history of committing acta rea demonstrably depends on the assumption that character is constant that the only explanation for the repeat events is that this defendant differs from the general population in a way that explains all of the events. n75 A closer look at the doctrine of chances clinches this conclusion. The very process of eliminating (or reducing to a negligible level) the odds that the charged act was accidental necessarily involves the assumption that the defendant's character is constant. This is so because the bad act evidence supports the finding of intent only if one assumes that the character traits that can be inferred from the uncharged misconduct evidence are continuing. We cannot eliminate that assumption and still treat the accumulation of evidence of repeated incidents of misconduct as probative.    B. A Short Mathematical Proof Recall that the relevance of the repeated events their force in affecting the probability of guilt necessarily depends on the assumption that each additional event decreases the probability that any of the events was accidental. On this point, Wigmore agrees. n76 In turn this assumption necessarily depends in a mathematically demonstrable manner on the assumption that the defendant's character is unchanging. That is so because accepting the principle that each repeated event decreases the odds of accident entails the assumption that, as long as at least one occurrence is intentional, every occurrence is intentional.     Let me explain why this is a necessary relationship. The addition of repeat events decreases the probability of accident only if we assume that, if one event is intentional, then every event is intentional. After all, as the number of events increases, the odds that at least one event is accidental actually increase. But the doctrine of chances assumes that the odds that the charged event is accidental decrease with the addition of repeat events; this means that the doctrine of chances does not give the defendant the benefit of the possibility that, across the total number of events, some might be intentional and others accidental.     To understand this point further, one must break the possible outcomes into three possible combinations of accidental and intentional events: one set (or outcome) consisting only of acts that are accidental, one set (or outcome) consisting only of acts that are intentional, and many sets (or outcomes) that include some combination of intentional and accidental acts. n77     Consider the probability of the set in which every act is intentional. Like the probability that every act is accidental, discussed above, n78 the probability of this set actually decreases with the number of acts (that is, as additional incidents or events are added). That probability is not likely to decline to the minuscule levels reached by the odds that every act is accidental, however, because the probability that a single act was intentional begins at a much higher level than does the probability that a single act was accidental. Still, as additional repetitions are added, the probability that every act is intentional steadily declines.     At the same time, the addition of more acts causes the probability that at least one outcome is intentional (i.e., that not every act is accidental) to increase. This latter probability is the complement of the probability that every act is accidental (because the sum of probabilities must add up to one). For example, assume that the odds that any one act is intentional are 19/20, or 95%; then assume that we have evidence of three such acts. The odds that every one of the three acts is intentional are .95 x .95 x .95, which equals 85.74% (85.74 in 100). For the same example, the odds that every act is accidental are .05 x .05 x .05, which equals .0125% (1 in 8000). Since the sum of all probabilities must add up to one, the other outcomes that make up the total odds (1% .8574% .000125%) are the mixed sets of events, those sets in which one or two of the acts are accidental. n79     To achieve a declining chance of accident, it is essential that we deny the defendant the benefit of those mixed sets. If we give the defendant the benefit of the mixed sets, the additional events increase the odds of at least one accident, thereby muddying our ultimate conclusion as to mens rea. Instead, we assume that all of the outcomes are alike. This requires the assumption of continuity of character, or classic propensity reasoning. It compels a conclusion opposite to that of Professor Imwinkelried's view that "under the doctrine of chances, the probative value of similar fact evidence does not depend on the assumption that the accused will act in the same way that he or she behaved in the past." n80 In the end, the doctrine of chances cannot avoid reliance on the very character inferences that define propensity reasoning. The doctrine helps to explain the propensity intuition, but it does not provide a separate path that reaches a conclusion without using propensity inferences. n81     In fact, contradicting his argument that the doctrine of chances does not involve propensity reasoning, Professor Imwinkelried's own example of propensity reasoning can be explained by the doctrine of chances; Professor Imwinkelried says that relying on a defendant's "abnormal sexual propensity" to identify the defendant is an instance of propensity reasoning. n82 This example, however, can easily be explained in terms of probabilities that depend on statistics about the population as a whole. In short, the implicit reasoning is that this defendant differs from the population as a whole in a way that renders minuscule the chance that the similarity of repeated acts is accidental. n83 Use of basic probability principles and reliance on objective statistics about average population characteristics the features cited by Professor Imwinkelried in his argument that the doctrine of chances does not implicate propensity do not distinguish this admitted propensity case from the purported non propensity cases.     It is also true that the cases which the doctrine of chances cannot explain are the cases that plainly do not involve propensity. One common example is evidence showing that a defendant possessed a certain specialized knowledge. Where a defendant denies technical familiarity with a certain drug, evidence that the defendant earlier had the technical knowledge at issue is relevant without assuming the continuity of character across different events. n84 This evidence does not rely on probabalistic reasoning or the doctrine of chances.    C. A Note on this Article's Use of Mathematics Anticipating criticism for overstating the role that mathematics can play in the law, I note that this Article uses mathematics to very modest ends. n85 It employs mathematics only as a language that usefully raises to the surface the probability concepts that lie beneath many uses of bad acts evidence. This Article certainly does not propose the use of formal quantification to resolve particular cases. Needless to say, there are many sources of play in the joints what Professor Tribe calls "soft variables" n86 in the probability illustrations used in this Article. Because the purpose of this Article is only to expose the propensity assumptions in the probabalistic reasoning, I will not review the many limitations that arise if one attempts to fully capture a set of facts with a mathematical model.    IV. The English Example: Acknowledging the "Fundamental Fallacy" Finally, I close by supporting my argument with what amounts to an appeal to authority. The American rule against the "forbidden" reasoning was borrowed from England, n87 but English law has since rejected that rule in favor of this Article's position that other crimes cases routinely employ the "forbidden" reasoning. n88 This reversal by the original common law jurisdiction should inspire scholars to take a hard look at this Article's thesis.     The most influential statement of the traditional English rule was in an 1894 decision, Makin v. Attorney General for New South Wales. n89 Makin set out a two part statement of the traditional rule that strikingly parallels the two sentences of Rule 404(b). First, Makin held that:    It is undoubtedly not competent for the prosecution to adduce evidence tending to shew [sic] that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. n90 Then, in a parallel to the second sentence of Rule 404(b), Makin noted the permissibility of non propensity reasoning:    [T]he mere fact that the evidence adduced tends to shew [sic] the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence [sic] which would otherwise be open to the accused. n91 Over the eighty years following the Makin decision, this second sentence generated a baroque superstructure of categories of relevance that purportedly avoided propensity reasoning. n92 Gradually, however, courts came to realize as this Article argues that the cases in the categories identified do not, in fact, avoid the purportedly "forbidden" reasoning and that "English law does not, in truth, regard reasoning from disposition as illegitimate." n93 Eventually courts and "most [English] academic commentators" recognized that the belief that the more common uses of prior bad acts evidence did not involve propensity reasoning was a "fundamental fallacy." n94 In place of the discredited ban on the "forbidden" reasoning, English courts have adopted a direct inquiry into the probativeness and prejudicial effect of the evidence. This direct approach first emerged in 1975 in two of the five speeches in Boardman. n95 Lord Wilberforce provided its plainest statement: "[T]here is no general or automatic answer to be given to the question whether evidence of facts similar to those subject of a particular charge ought to be admitted." n96 Instead, he explained, the court must balance probativeness and prejudice:    In each case it is necessary to estimate (i) whether, and if so how strongly, the evidence as to other facts tends to support, i.e., to make more credible, the evidence given as to the fact in question; (ii) whether such evidence, if given, is likely to be prejudicial to the accused. n97 In case any doubt remained about the nature of the test, Lord Wilberforce finished with a reminder: both these elements involve questions of degree. n98     Makin's reliance on classification and categorical thinking is typical of the formalist style of judicial decisions of its era. Rule 404(b) duplicates this style, although updated by the addition of the exclusionary discretion of Rule 403. n99 Professor Imwinkelried has noted the change in English law. n100 He did not note, however, that while the American Federal Rule still embodies the now discredited English ban on propensity, in practice American courts have adopted the newer English approach. Thus, we have the current embarrassing state of the American law of other crimes evidence.    V. Conclusion The only plausible explanations for most uses of bad acts evidence necessarily depend on inferences about defendant propensity. In short, bad acts evidence is behavioral evidence, and behavioral evidence can be relevant only if we assume that behavior does not change. In the words of Rule 404(b), evidence of the other bad act is used to show the defendant's character and that the defendant "acted in conformity therewith" in the case at issue. This chain necessarily includes an inference from the defendant's earlier behavior to the probable continuance of that behavior. The cases simply cannot be squared with the plain language of Rule 404(b).
           
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