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Published online by Cambridge University Press: 01 September 2008
The question addressed here is whether evidence concerning defendants' past criminal records should be introduced at their trials because such evidence reveals their character and thus reveals whether they are the kinds of persons likely to have committed the crimes with which they are currently charged. I strongly caution against the introduction of such evidence for a number of reasons. First, the link between defendants' past criminal records and claims about their standing dispositions to think and act is tenuous, at best. Second, noncharacter, or trace, evidence should have primacy in determining the guilt or innocence of defendants. Third, character evidence will vary in its freshness and specificity. Other things being equal, only relatively fresh and specific character evidence has probative value. Moreover, such evidence will have greater probative value in criminal cases where the issue before the court is whether a crime has been committed than in cases where the issue is whether it was the defendant who committed the crime. Finally, we might be more sanguine about the introduction of fresh and specific character evidence under conditions likely to work against its misuse or misinterpretation. However, the relevant conditions may not often be satisfied in the real world of criminal trials and defendants.
1. The rule states: “Evidence of a person's character of a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion”; Fed. R. Evid. 404. See also United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980), where the court wrote: “It is fundamental to American jurisprudence that ‘a defendant must be tried for what he did, not for who his is.’”
2. Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology 138–139 (2006).
3. Recent revisions allow the introduction of evidence of specific past misconduct in cases involving sexual misconduct or child molestation. See Fed. R. Evid. 413–415.
4. Fed. R. Evid. 404(b) allows evidence of past crimes for “other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Richard Uviller employs the acronym “KIPPOMIA” to refer to these exceptions. See Uviller, R., Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. Pa. L. Rev. 845–891 (1982), at 877Google Scholar.
5. Those who discuss the cognitive errors jurors might be inclined to commit with regard to such evidence include Sanchirico, Chris William, Character Evidence and the Object of Trial, 101 Colum. L. Rev. 1227–1311 (2001), at 1242–1246Google Scholar; Tillers, Peter, What Is Wrong with Character Evidence?, 49 Hastings L.J.781–834 (1998), at 793Google Scholar; Park, Roger C., Character at the Crossroads, 49 Hastings L.J. 717–779 (1998), at 738–41Google Scholar; and Acorn, A.E., Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense, 11 Oxford J. Legal Stud. 63–91 (1991), at 68Google Scholar.
6. This is often referred to in the scholarly literature as “jury nullification.” See, among others, Sanchirico, supra note 5, at 1246–1248.
8. Uviller, supra note 4, at 847.
9. Laudan, supra note 2, at 30.
10. This is Laudan's useful way of characterizing such evidence. See id. at 140.
11. Joel Kupperman, Character (1991), at 17.
12. Id. at 17.
13. Christine McKinnon, Character, Virtue Theories, and the Vices (1999), at 71.
14. Uviller, supra note 4, at 885.
15. See Devine, Dennis J., Clayton, Laura D., Dunford, Benjamin B., Seying, Rasmy & Pryce, Jennifer, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychol. Pub. Pol'y & L. 622–727 (2001), at 678Google Scholar.
16. See, e.g., David P. Farrington, Human Development and Criminal Careers, in The Oxford Handbook of Criminology 361–408 (M. Maguire, R. Morgan & R. Reiner eds., 1997), at 380.
17. Acorn, supra note 5, at 73.
18. It might be objected that we can infer things about a person's character from past-conduct evidence, such as a modus operandi. For instance, suppose that a defendant's past murders were always meticulously and cruelly carried out. Can we not infer from such evidence that the defendant is deliberate, careful, and sadistic? Perhaps we can, though the extent to which such traits dominate his character, rather than being aberrations within it, probably cannot be inferred. And in any case, again, it is not really his character that is probative, but the specific, repeat ways he has acted, especially if these are replicated in the current offense with which he is charged.
19. Such sidebar conferences regarding disputed evidence are required by the law in other contexts. See Fed. R. Evid. 103–104.
20. My views here are indebted to the discussion in Uviller, supra note 4, at 890.
21. D. Michael Risinger draws a similar distinction; see Risinger, Unsafe Verdicts: The Need for Reformed Standards for the Trial and Review of Factual Innocence Claims, 41 Hous. L. Rev. 1281–1335 (2004), at 1310.
22. In suggesting this interpretation of BARD, I borrow from Laudan, supra note 2, at 82–83, and Alex Stein, Foundations of Evidence Law (2005), at 178.
23. I borrow this example from Park, supra note 7, at 741.
24. This line of argument is developed in Laudan, supra note 2, ch. 5.
25. See Richard O. Lempert, Samuel R. Gross & James S. Liebman, A Modern Approach to Evidence Law, 327–328 (3d ed. 2000).
26. Laudan hints at this approach in a number of places in Laudan, supra note 2; see, e.g., id. at 121, where he suggests that the reliability of evidence be left in the jury's hands “provided that the arguments from counsel and instructions from the judge inform the jury's assessment of reliability.” See also id. at 24–25.
27. Id. at 32–51.
28. See Devine, Clayton, Dunford, Seying & Pryce, supra note 15, at 666–667. See also Diamond, Shari Seidman, Beyond Fantasy and Nightmare: A Portrait of the Jury, 54 Buff. L. Rev.717–763 (2006), at 752Google Scholar.
29. See Frank, Mitchell J. and Borschard, Dawn, The Silent Criminal Defendant and the Presumption of Innocence: In the Hands of Real Jurors, Is Either of Them Safe?, 10 Lewis & Clark L. Rev.237–285 (2006), at 249–251Google Scholar; and Keith A. Findley and Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, Wis. L. Rev. 291–397 (2006), at 340–341.
30. Fed. R. Evid. 403 permits a judge to exclude otherwise probative evidence if its nature is such as to inflame “unfair prejudice” against the defendant. One can imagine that certain kinds of fresh, reliable, and specific criminal histories would do so (e.g., of violent sex crimes against children). Still, the rule requires the judge to balance the probative value of the evidence against its prejudicial effects. Not only is this a difficult task, but, as Laudan points out, judges may not be in a position really to know what kinds of evidence invariably lead jurors to respond viscerally to defendants, thereby stimulating jurors to make dubious inferences from relevant but inflammatory evidence. Laudan prefers to let jurors have all relevant evidence, especially if they can be strongly cautioned and carefully instructed by the judge in their use and evaluation of it. But as we have just noted, such conditions on its admissibility may not always be satisfied. For Laudan's discussion, see Laudan, supra note 2, at 19–25.
31. A sobering account of just how badly criminal justice in the real world can go off the rails is provided by the nonfiction work, John Grisham, The Innocent Man: Murder and Injustice in a Small Town (2006). For a scholarly treatment of the ways in which cognitive errors of various kinds can infect criminal investigations and trials, see Findley & Scott, supra note 29.
32. See Smith, Douglas G., Structural and Functional Aspects of the Jury: Comparative Analysis and Proposals for Reform, 48 Ala. L. Rev.441–581 (1997), at 454–469Google Scholar.
33. Cf. Risinger, supra note 21, at 1314–1316.
34. For discussion of jury nullification, see Matt Matravers, More Than Just Illogical: Truth and Jury Nullification, in The Trial on Trial Volume 1: Truth and Due Process 71–83 (A. Duff, L. Farmer, S. Marshall & V. Tadros eds., 2004); Brooks, Thom, A Defense of Jury Nullification, 10 Res Publica401–423 (2004)Google Scholar; and Muller, Eric L., The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev.771–835 (1998), esp. at 794–801Google Scholar.
35. The effects of criminal records on the willingness of defendants to testify at their trials are nicely summarized in Lempert, Gross & Liebman, supra note 25, at 327–328.
36. Sanchirico, supra note 5, at 1245–1246.
37. Laudan, supra note 2, at 136. For Laudan's full discussion of the distributional tendencies of modern evidence law, see id. at 117–146.
