1 Criminal Record, Character Evidence, And the Criminal Trial

http://journals.cambridge.org Downloaded: 16 Jul 2014 IP address: 132.203.227.63

Legal Theory, 14 (2008), 167–191. Printed in the United States of AmericaC© 2008 Cambridge University Press 0361-6843/08 $15.00 + 00doi:10.1017/S1352325208080099

CRIMINAL RECORD, CHARACTEREVIDENCE, AND THE CRIMINALTRIAL∗Richard L. LippkeDepartment of Criminal Justice, Indiana University

The question addressed here is whether evidence concerning defendants’ past crim-inal records should be introduced at their trials because such evidence reveals theircharacter and thus reveals whether they are the kinds of persons likely to have com-mitted the crimes with which they are currently charged. I strongly caution against theintroduction of such evidence for a number of reasons. First, the link between defen-dants’ past criminal records and claims about their standing dispositions to think andact is tenuous, at best. Second, noncharacter, or trace, evidence should have primacyin determining the guilt or innocence of defendants. Third, character evidence willvary in its freshness and specificity. Other things being equal, only relatively freshand specific character evidence has probative value. Moreover, such evidence willhave greater probative value in criminal cases where the issue before the court iswhether a crime has been committed than in cases where the issue is whether it wasthe defendant who committed the crime. Finally, we might be more sanguine aboutthe introduction of fresh and specific character evidence under conditions likely towork against its misuse or misinterpretation. However, the relevant conditions maynot often be satisfied in the real world of criminal trials and defendants.

It might seem a truism to say that individuals should have their guilt orinnocence at trial determined by evidence related to the current chargesagainst them rather than by evidence of real or alleged past misconduct forwhich they are not on trial. Criminal defendants are not to be found guiltyand punished by the state because they have checkered pasts. Indeed, theexclusion of so-called character evidence under United States Federal Ruleof Evidence 404 appears to give official imprimatur to the notion that thefocus of criminal trials is to be on the current charges and the evidence forthem.1 Bad people may or may not ultimately get what they deserve for the

∗I am grateful to two anonymous reviewers for their very helpful comments on earlier draftsof this paper.

1. The rule states: “Evidence of a person’s character of a trait of his character is not admissiblefor 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 courtwrote: “It is fundamental to American jurisprudence that ‘a defendant must be tried for whathe did, not for who his is.’ ”

167

http://journals.cambridge.org


168 RICHARD L. LIPPKE

lives they have led, but judges or juries are not to decide the fate of criminaldefendants based on evidence about the kinds of people they are.

As anyone familiar with the entire array of rules relating to character ev-idence knows, the criminal law is hardly clear or consistent in its exclusionof such evidence from criminal trials. Defendants can call witnesses to attestto their good character (though if they choose to do so, prosecutors canthen challenge that evidence). As Larry Laudan has recently argued, it isnot apparent how this asymmetry in the admissibility of character evidencemakes any sense.2 If evidence of good character is admissible, it must be be-cause it is believed to show that defendants are unlikely to have committedthe crimes with which they are charged. Yet why, then, should not evidenceof bad character likewise be admissible, whether the defense introducesgood character evidence or not? Do not long criminal histories provide atleast some evidence that defendants are more likely than not to be guiltyof the current charges against them?3 Moreover, evidence of past miscon-duct is admissible into criminal trials in other ways. Prosecution or defensewitnesses can have their testimony impeached by evidence of their past dis-honesty or suspect motivations in testifying. Furthermore, the criminal lawpermits the introduction of evidence concerning a defendant’s past conductto help demonstrate specific elements of an alleged current crime—a modusoperandi, knowledge of how to perform illegal acts (e.g., cracking safes), ora motive for the crime with which the defendant is charged, among others.4

There are quite powerful reasons to worry about how evidence of defen-dants’ past misconduct affects the outcomes of their trials, especially whensuch evidence consists of their criminal records. Two grounds for concernstand out. First, juries (or judges, in the case of bench trials) might tooquickly or easily infer the guilt of defendants on the current charges ifthe past criminal histories of those same defendants are revealed to them.5

Second, once they are apprised of defendants’ past misdeeds, juries mightfind them guilty regardless of the evidence supporting the charges, on thegrounds that defendants with sordid pasts deserve (more) punishment.6

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 casesinvolving 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 ofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake oraccident.” Richard Uviller employs the acronym “KIPPOMIA” to refer to these exceptions. SeeR. Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130U. PA. L. REV. 845–891 (1982), at 877.

5. Those who discuss the cognitive errors jurors might be inclined to commit with regardto such evidence include Chris William Sanchirico, Character Evidence and the Object of Trial,101 COLUM. L. REV. 1227–1311 (2001), at 1242–1246; Peter Tillers, What Is Wrong with CharacterEvidence?, 49 HASTINGS L.J. 781–834 (1998), at 793; Roger C. Park, Character at the Crossroads, 49HASTINGS L.J. 717–779 (1998), at 738–41; and A.E. Acorn, Similar Fact Evidence and the Principleof Inductive Reasoning: Makin Sense, 11 OXFORD J. LEGAL STUD. 63–91 (1991), at 68.

6. This is often referred to in the scholarly literature as “jury nullification.” See, amongothers, Sanchirico, supra note 5, at 1246–1248.



Criminal Record, Character Evidence, and The Criminal Trial 169

Still, we might wonder why those who render verdicts in criminal trials(I shall hereafter assume that this will typically be juries, though the pos-sibility of bench trials should be borne in mind by the reader) could notbe strongly cautioned against such dubious lines of reasoning or, indeed,whether they are all that susceptible to them. Laudan suggests that jurorsmight well be capable of separating past from current guilt, and other schol-ars argue that the mistaken inferences jurors might make based on evidenceof past misconduct are no different in kind from many others they mightmake but which we assume (or hope) that they will not make.7

My main focus in the discussion that follows is on the admissibility of adefendant’s past criminal record in the course of a trial for the purposeof establishing claims about her character. I do not support the categoricalexclusion of such evidence, though I contend that we must be wary ofit and cautious in permitting its introduction. We should recognize thata defendant’s past criminal record may tell us little about her character.Where a defendant’s past criminal record does provide credible evidenceabout her character, it may tell us something about only a slice or segmentof her character. Though there may be cases in which we have credibleevidence about a defendant’s character that is undeniably relevant to thekind of crime with which she is currently charged, in determining theadmissibility and probative value of such evidence, we should distinguishtwo broad types of criminal cases. In the first type of case, the judge or jurymust decide whether a crime was committed. For instance, in certain kindsof white-collar crime cases, whether defendants are guilty of fraud mightdepend solely on their intentions in acting in certain ways. In such cases,there will be no other suspects who could instead be found guilty of thefraudulent activity. In the second kind of case, the issue before the court iswhether it was the defendant who committed the crime, not whether a crimewas committed. Credible character evidence may have probative value inboth kinds of cases—especially if it is “specific” and not “stale”—thoughit will less often have it in the second type of case. In both types of cases,noncharacter evidence, or what Richard Uviller terms “trace evidence,”should have primacy and should be evaluated by the jury independently ofthe character evidence.8

In sorting through the various and complex issues raised by characterevidence, it is useful to distinguish what we might say about it under cer-tain ideal conditions—ones strongly conducive to jurors avoiding errorsin criminal trials (understood as finding either the innocent guilty or theguilty innocent)—from what we might say about that evidence given whatwe know or reasonably believe about criminal investigations and trials inthe real world. It is one thing to believe that we might allow liberal use of

7. LAUDAN, supra note 2, at 139. On the other kinds of mistaken inferences jurors are proneto, see Sanchirico, supra note 5, at 1245.

8. Uviller, supra note 4, at 847.




character evidence if jurors are armed with certain crucial distinctions re-garding such evidence, understand and accept the presumption of inno-cence owed to defendants, understand and are capable of applying whatLaudan terms the BARD (that is, beyond a reasonable doubt) standard, andreceive lots of help and guidance from judges and defense attorneys in in-terpreting such evidence.9 It is quite another to accept liberal rules relatingto character evidence if some or all of these conditions are not satisfied.Some of the debate about character evidence can, I believe, be traced tothe failure to make this distinction. These are matters that I discuss in thepenultimate section. There I argue that various things we know or reason-ably believe about criminal trials in the real world might make us reluctantto allow the introduction of character evidence even if it is credible. Var-ious reforms, if implemented, might ease our concerns without entirelyeliminating them.

I. GETTING CHARACTER EVIDENCE THROUGH THECOURTROOM DOOR

It is tempting to give in to Laudan’s critique of current character evidencerules, especially his attack on the asymmetry in those rules which allows thedefense to introduce evidence of the defendant’s good character but disal-lows the prosecution doing so with regard to the defendant’s bad character,except in rebuttal. If evidence of good character is “relevant to, withoutbeing dispositive of,” our evaluation of people’s conduct, why should notevidence of bad character be admissible?10 But before we accept this, it isimportant to get clearer on just what character is and what the various kindsof evidence that might be introduced at a criminal trial reveal about it. It isundeniable that we use character evidence in our everyday lives to predictpeople’s behavior or interpret it when their motives or intentions are nototherwise transparent. Yet the contexts in which we do so and the stakesinvolved are often very different from those of a criminal trial. Moreover,the kinds of evidence that we have of the character of individuals are oftensuperior to those juries are apt to have.

To begin with, we need some workable account of what “character” is,for this will help us see how the debate about character evidence is, attimes, misleadingly cast. Joel Kupperman offers an account of characteraccording to which “X’s character is X’s normal pattern of thought andaction, especially with respect to concerns and commitments in mattersaffecting the happiness of others or of X, and most especially in relationto moral choices.”11 Kupperman notes that by “normal pattern,” he meanswhat is normal for X in various circumstances, including unusual ones that

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.




might be regarded as moral test cases for X. There is an implication hereof considerable stability. In speaking about a person’s character, we pickout things about a person that are not momentary concerns but are insteadones that “bridge the present and other parts of a person’s life” and also“bridge thought and action.”12 This is not to say that character cannotchange over time. It can, and this fact will have some relevance to the useof past criminal records in trials.

Consider also Christine McKinnon’s slightly different account: “To talkabout a person’s character is to talk about a complex of virtues and vices andmore ethically neutral skills, abilities, and dispositions she possesses as well asto talk about the ways in which she values them and identifies with them andthe roles she has constructed for them in her life.”13 McKinnon’s account,like Kupperman’s, emphasizes the way in which character unifies a life,because it involves a somewhat self-reflective stance on one’s dispositionsand their desirability. Thus, when we say that someone has good character,we mean that she not only stably possesses certain kinds of moral sensibilitiesand skills that enable her to act well but also that she is committed todeveloping and extending them and to pursuing aims and purposes that areconsistent with the dignity of others and proper concern for their welfare.By contrast, when we say that someone has bad character, we mean that shelacks crucial moral sensibilities and skills, has little interest in extendingthem or eschews the value of doing so, and tends to pursue projects or aimsthat show little regard for others’ dignity or welfare.

One thing that should be readily apparent from these accounts is just howmuch we would need to know about a person in order to have somethingapproaching justified beliefs about his character. Though we can read agood deal about a person’s character from his actions, really knowing hischaracter requires delving beneath his surface conduct to get at his mo-tives, concerns, ways of thinking, and attitudes toward himself and others.Typically, we only come to “know” a person’s character after spending con-siderable time observing him in a variety of different contexts, talking withhim, or talking to others who have observed and interacted with him overan extended period of time. Of course, we may quickly form provisionaljudgments of character because we have to in order to interpret people’sbehavior or predict what they will do. But such provisional judgments areproperly subject to revision and refinement in light of further observationsof or interactions with the individuals in question. Obviously, such revisionand refinement can be an ongoing process.

In our everyday affairs, we employ character judgments of both provi-sional and more fully evidenced kinds. But this may not tell us much aboutwhether doing so in the context of criminal trials is feasible or even advis-able. For one thing, the evidence of a defendant’s character that juries are

12. Id. at 17.13. CHRISTINE MCKINNON, CHARACTER, VIRTUE THEORIES, AND THE VICES (1999), at 71.




apt to see during a criminal trial is sometimes of dubious quality. This willcertainly be true for so-called “reputational testimony,” where witnessescome before the court to state their views about a defendant’s perceivedstanding in the community. As Uviller puts it, the witness most likely “merelyprojects his personal opinion into the hypothetical minds and conversationsof an ill-defined group of anonymous neighbors and associates.”14 How re-liable such testimony will be is anyone’s guess, but there seems little reasonto believe that it will usually be based on a witness’s careful observationof and interaction with the defendant in a variety of contexts over an ex-tended period of time. If such testimony is supposed to help jurors decidewhether the defendant is the kind of person who would commit the crimeor crimes with which he is charged, it seems very weakly probative at bestand is properly subject to contestation.

What about character testimony offered by witnesses who are called uponto give their personal opinion of a defendant’s character? Such testimonymight be more probative, depending on the extent and kind of interactionsthe witness has had with the defendant as well as upon the witness’s skill atobserving and interpreting people’s behavior. In some cases, such testimonymight give us quite a bit of useful evidence about a person’s character. Yetwhat it will more often give us is evidence about certain limited patternsof past conduct by the defendant. Indeed, these are the sorts of things wit-nesses can probably be relied upon to attest to—specific instances in whichthey have observed the defendant acting in certain ways in the past. If, forinstance, a defendant is charged with recklessly endangering the lives ofothers in some specific type of context (e.g., while driving an automobile),then having witnesses who testify to having observed the defendant behav-ing in similar ways in similar contexts in the past seems probative. Howmuch it should be allowed to count toward establishing the guilt of defen-dants BARD is a matter I return to below. The important point here is thatthough such past misconduct may suggest something about the defendant’scharacter, it would be hazardous, to say the least, to draw any broad or firmconclusions about the defendant’s character from testimony about it.

It might be objected that particular bits of trace evidence will often be nomore than weakly probative, pointing toward the defendant’s guilt in onlya mildly probabilistic fashion. Yet they are offered up to the jury as part ofthe prosecution’s larger case against the defendant. The jury is expected tosort through the various kinds of trace evidence proffered and arrive at aconclusion about its overall strength. Why not allow marginally probativecharacter evidence to be introduced and evaluated by the jury as well,especially if it is subject to vigorous challenge by defense attorneys? Thisobjection is well taken when reputational and personal opinion testimonyare at issue but should be resisted when it is a defendant’s criminal recordthat the prosecution seeks to introduce. Why is this? In the first place,

14. Uviller, supra note 4, at 885.




a person’s past criminal record may not tell us much about his overallcharacter or even the more specific propensities of thought and actionthat he currently possesses. As such, his criminal record will often be onlyvery weakly probative. In the second place, the likelihood that introductionof a defendant’s past criminal record at his trial will bias the jurors againsthim, independently of the relative strength of the trace evidence in the case,distinguishes it from reputational or personal opinion testimony. Possessionof a criminal record, especially one that is lengthy or violent, is highlystigmatizing. Indeed, there is evidence confirming the tendency of jurorsmore readily to convict defendants about whose criminal pasts they learn.15

It therefore seems reasonable to exclude evidence of a defendant’s pastrecord unless it can be shown to provide specific evidence about his currentpropensities.

We should be quite hesitant in making inferences from a defendant’scriminal record to claims about her character. A person’s past criminalrecord does not “speak for itself,” especially insofar as it is consulted forevidence about her character. Set to one side, for the moment, defendantswho have been wrongly convicted in the past or who have pled guilty tocrimes that they did not commit because offered attractive plea bargainsthat they accepted because they did not want to risk conviction at trial, withits typically harsher sanctions. Suppose that a defendant is guilty of all ofthe crimes of which she has been convicted. Her record may still tell us littleabout the circumstances of and motivations behind her offending. Did shecommit these crimes because she is self-centered and violent or becauseshe was addicted to drugs or desperately attempting to please a violent manon whom she was economically or emotionally dependent? If a history ofcriminal offending is to provide us with character evidence, then we mustfind out more about the origins of her conduct to discover what (if anything)her record reveals about her normal patterns of thought and action. Thissuggests that the courts would have to take on the costly and time-consumingtasks of finding out not just what defendants have done in the past butwhy they have done it—for what purposes, in what contexts, and in whatways. For it is only these details that reveal a defendant’s relatively stablepropensities for thought and action, her responsiveness (or lack thereof) tomoral considerations, and thus her degree of concern for the dignity andwelfare of herself and others.

Furthermore, a defendant’s past criminal record might be “stale” as anindicator of her character. A series of convictions five or ten years ago maynot tell us much about a defendant’s current propensities, at least on theplausible assumption that people can gradually change and thus not bethe kinds of people they were at earlier junctures in their lives. Perhaps a

15. See Dennis J. Devine, Laura D. Clayton, Benjamin B. Dunford, Rasmy Seying & JenniferPryce, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 PSYCHOL. PUB.POL’Y & L. 622–727 (2001), at 678.




defendant’s attorney can be trusted to raise such doubts and complexities,but it is apparent that they should be raised.

Admittedly, there will be cases in which a defendant’s criminal recorddoes reveal things about his current character. A long, diverse, and violentenough criminal history (one the validity of which is beyond reasonabledispute) might give us quite a bit of useful evidence about a defendant—inparticular, his relatively stable willingness to run roughshod over others’interests in the pursuit of his own. Such evidence might be bolstered by thetestimony of family members, friends, or victims of prior crimes who havedirectly witnessed the defendant’s depravity in a wide variety of contexts.Moreover, if a number of the convictions are quite recent, there will belittle reason to believe that the defendant has changed his stripes. Evenin such cases, however, we should be cautious about drawing sweepingconclusions about a defendant’s character. We all know that humans arecomplex creatures. Depraved killers are sometimes kind to their friends,mothers, or pets. Hence a past criminal record is unlikely to provide us witha complete or nuanced portrait of a defendant’s character. Instead, it mightgive us useful information about only slices or segments of his character orabout specific propensities that he possesses.

Perhaps that is all we need, since it might plausibly be suggested thatwhat we are attempting to uncover with such evidence is whether defen-dants are the kinds of persons likely to commit the crimes with which theyare charged, especially if given the opportunity to do so. Defendants’ pastcriminal records might tell us this much, if not all that much about theirbroader characters. True enough, though it is important to emphasize thedifference between more and less specific kinds of such evidence. It is onething if a past criminal record provides credible evidence that a defendantis the kind of person likely to commit the specific type of crime with whichhe is currently charged. It is quite another if a past criminal record providescredible evidence that a defendant has more general criminal tendenciesthat are less directly related to the specific crimes with which he is cur-rently on trial. The first kind of character evidence might be significantlyprobative and enough so to convince us to set aside our concerns that itsintroduction will bias jurors against defendants so much that they will dis-count or ignore the relevant trace evidence. The second kind of characterevidence is more problematic, and not just because people can act contraryto their tendencies or because such tendencies must not be permitted toovershadow the trace evidence of guilt. A tendency to commit one type ofcrime may reveal little about the tendency to commit other types. True, theevidence we have from recidivism studies suggests that many offenders aregeneralists when it comes to committing crimes.16 Most do not specialize.But it would be hazardous, to say the least, to infer present guilt with regard

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.




to one alleged type of offense from a past record of other kinds of offenses.Hence I would disallow the introduction of a past record that is unrelated tothe current charges. Such evidence is not probative enough to warrant ourtaking the chance that its introduction will overshadow the trace evidenceof a defendant’s guilt in jurors’ minds.

Notice that it is the specificity of certain kinds of past-conduct evidencethat explains its undisputed probative value in criminal cases. As alreadynoted, evidence rules permit the prosecution to introduce evidence of adefendant’s past misconduct: a modus operandi used by the defendant in thepast for which there is trace evidence in the current case; evidence thatthe defendant had a motive to commit the crime with which he is currentlycharged; or evidence (such as a past conviction for the same offense) that thedefendant knows how to commit a specific kind of offense with which he iscurrently charged (e.g., pickpocketing), especially if the defendant activelydisputes this contention. Such past-conduct evidence is “specific” in thesense that it establishes an element of the current charges (e.g., knowledgeof how to commit the crime in question), or corresponds with an elementof the current charges (e.g., a modus operandi) or an overall crime patternexhibited in the current charges, or rebuts all or some part of a defenseoffered by a defendant. A.E. Acorn argues that many of the more specifickinds of past-conduct evidence are probative precisely because they do notask juries to reason from broad and somewhat dubious generalizationsabout people (e.g., people who have past criminal records are bad peopleand thus likely to be guilty of the current charges against them).17 Insteadthey invite juries to reason from more specific types of generalizations (e.g.,people who have been repeatedly convicted of crimes involving a specificmodus operandi, which is also present in the current case, are more likelyto be guilty of the current charges). Hence such past-conduct evidence isnot employed by the prosecution to implicate the defendant based on hisbad character. Indeed, such evidence does not tell us much at all about thedefendant’s character so much as provide or sustain trace evidence.18

Assuming that certain kinds of character evidence are deemed probativeenough to rebut the presumption against allowing defendants’ criminalrecords to be introduced into a trial, there should be some procedure fordetermining when doing so is to be permitted. It seems that the burden ofestablishing the freshness, reliability, and specificity of the evidence shouldbe on the prosecution, and we might reasonably require the prosecution to

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 werealways meticulously and cruelly carried out. Can we not infer from such evidence that thedefendant is deliberate, careful, and sadistic? Perhaps we can, though the extent to whichsuch traits dominate his character, rather than being aberrations within it, probably cannot beinferred. 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 whichhe is charged.




provide clear and convincing evidence of this freshness, reliability, and speci-ficity to the presiding judge. Defense counsel should be allowed to challengethe introduction of such evidence along any of the relevant dimensions, ar-guing that it is dated, unreliable for indicating any sort of propensity of thedefendant, or not specific enough given the current charges and evidencefor them. Also, the decision by a judge to permit the introduction of a de-fendant’s past criminal record should be a basis for subsequent appeal ifthe defendant is convicted. Importantly, any hearing on the introductionof such character evidence should be conducted away from the jury, sothat jurors do not get wind of the defendant’s past criminal record untilor unless its introduction into evidence is allowed by the judge.19 If it is al-lowed, defense counsel should be permitted to contest it vigorously, muchas they would any other evidence, and caution jurors about the inferencesto be drawn from it. Even this may not be enough for, as we see below,jurors should evaluate the strength of the trace evidence independently ofprobative character evidence against the defendant.

This procedure for introducing character evidence, as well as the rele-vant criteria of freshness, specificity, and reliability, arguably should also beemployed when efforts are made to impeach witness testimony, especiallywhen the witness in question is the defendant herself. It should not be per-missible for the prosecution to seek to impeach the defendant’s testimony(and at the same time prejudice the jurors against her) by raising her pastcriminal record should she choose to testify. Of course, if her past criminalhistory includes one or more convictions for perjury, that might be deemedsufficiently probative by the judge to overcome the presumption againstintroduction of her criminal record in response to her testimony. Similarly,should she deny any motive to commit the crime in question or knowledgeof how to commit it, then evidence from her past criminal history mightbe reliable, fresh, and specific enough to warrant a judge’s allowing it tobe introduced (subject, of course, to contestation by defense counsel). In-deed, even in cases where the witness to be impeached is not the defendantherself, I am not convinced that quite general and vague attacks on thewitness’s character, of the sort that derive from citing the witness’s criminalrecord, should be permitted.20 Nonetheless, I concede that such cases aremore complicated because the witness is not a criminal defendant whosefate is in the jury’s hands.

There are, no doubt, harder cases where the past-conduct evidence thatthe prosecution seeks to introduce will not be so general as to utterly fail toshow the defendant to be the kind of person who might commit the crimein question nor so specific as to establish an element of the current offenseor demonstrate a modus operandi or distinctive crime pattern. The number

19. Such sidebar conferences regarding disputed evidence are required by the law in othercontexts. See FED. R. EVID. 103–104.

20. My views here are indebted to the discussion in Uviller, supra note 4, at 890.




of previous convictions a defendant has can vary, as can their temporaldistance from the present or extent to which they have elements that bearon the current charges. Where to draw the line on the admissibility ofless reliable or specific past-conduct evidence is a difficult question. Underideal conditions, we might err on the side of allowing more rather than lessof it to come before judges or juries, with the reasonable hope that theycan properly sift through and weigh it. Under less-than-ideal conditions,we might be more reluctant to trust those who must decide the fate ofdefendants with less reliable or specific past-conduct evidence. I return tothese matters later in the discussion.

II. THE RELATIONSHIP BETWEEN TRACE AND CHARACTEREVIDENCE

In this section, I argue that even if the courts do permit the introductionof reliable, fresh, and specific character evidence regarding a defendant,jurors should not be encouraged to rely on it very much in making decisionsabout guilt or innocence. In other words, the admissibility of such evidenceshould not be taken as anywhere near sufficient to establishing the truthof the current charges against the defendant. Again, what such evidenceshows is that the defendant is the kind of person who is disposed to committhe crime with which he is charged. It obviously does not show that he hasdone so on the occasion in question. It is the trace evidence that can showthat, though I concede that character evidence might have a legitimate roleto play in supplementing the trace evidence in some instances.

It is vitally important to us to come to understand what makes otherstick, not only to predict their future behavior but also to figure out how toapproach and deal with them. Especially when our interpreting or predict-ing others’ behavior has relatively low stakes, we seem justified in relyingon character evidence, even provisional character evidence. Yet notice howthings change when the stakes are higher. Suppose that one’s supervisor hasbeen accused of the wrongful firing of a colleague. Suppose also that one hascredible evidence concerning the supervisor’s good character, evidence thatjustifiably leads one to believe that it is highly unlikely that he would engagein misconduct of the sort in question. One has observed his conduct over along period of time in diverse situations. In addition, numerous conversa-tions with him suggest that he is stably disposed to act conscientiously andfrom the right sorts of reasons. Other colleagues whose judgment one be-lieves is reliable have reached similar conclusions about his good character,thus corroborating the character evidence one has. Nonetheless, given thestakes in the present case, the character evidence, credible as it may be, is notat all decisive. If the allegations against the supervisor are serious enoughand the impact on affected parties significant, then it seems reasonable, ifnot mandatory, to insist upon a more formal inquiry into his conduct.




Arguably, in the course of such a formal inquiry, character evidenceshould be temporarily bracketed, and the relevant trace evidence of hisconduct with regard to the matter in question should be given center stage.The suggestion that strong evidence of his good character should be em-ployed to examine and interpret the trace evidence in a light most favorableto him should, it seems, be resisted. If we are to evaluate the trace evidenceimpartially, we should be prepared to view it in ways that are both maximallycharitable and uncharitable to him. Only then will we be in a position todraw reasonable conclusions about which interpretation of his conduct thetrace evidence best supports. Indeed, one of the reasons for bringing inthird parties to adjudicate such disputes is precisely that they are less likelyto have their evaluations of the evidence colored by what they know aboutthe accused. If the trace evidence of misconduct is of the right kind, even thebest character evidence may be rebutted. The explanation for this is the fa-miliar one that people with good character can sometimes behave badly. Atmost, credible evidence of the supervisor’s good character might come intoplay if the trace evidence, evaluated from all sides, so to speak, is suggestiveof misconduct but not conclusive. At that point we might reasonably allowin the character evidence to reach the conclusion that he likely did not en-gage in the misconduct of which he is accused. Of course, if we lack crediblecharacter evidence, our conclusion might have to be the more cautious onethat the case against him is unproven.

The supervisor case is one that falls into the first category of cases thatI distinguish above, since the question it raises is whether the accused in-dividual engaged in misconduct. There are no other suspects in the case,in the sense of other individuals who might have wrongfully fired the col-league. Similarly, juries in criminal cases must sometimes decide whetheran accused person acted criminally, not whether he is the person who actedcriminally. We might refer to the former as “identity” cases, and the latteras “nonidentity” cases.21 To what extent or in what ways should crediblecharacter evidence, assuming it is available, be deemed useful in decidingthe nonidentity cases?

The answer, it seems, depends on both the quality of the trace evidencein the case and the relative specificity of the credible character evidence.Suppose that a defendant is on trial for rape. His defense is that the com-plainant consented to the sexual intercourse, a claim that she vehementlyand convincingly denies when put on the witness stand. Yet she was seenkissing and hugging the defendant in public, and she admits to going to hisapartment willingly on the evening in question. For his part, the accused isa quite credible witness on his own behalf when put on the stand. Supposethat there is no evidence of a motive on the complainant’s part that would

21. D. Michael Risinger draws a similar distinction; see Risinger, Unsafe Verdicts: The Need forReformed Standards for the Trial and Review of Factual Innocence Claims, 41 HOUS. L. REV. 1281–1335(2004), at 1310.




cast doubt on her version of events. Even if we think that woman shouldbe believed in such cases, that it is highly unlikely that they would go tothe trouble and potential embarrassment of publicly accusing someone ofraping them if it were not true, it is also true that the evidence, as described,may not be BARD conclusive of the defendant’s guilt. Perhaps a prepon-derance of the evidence (or PoE, to use Laudan’s acronym) supports aconclusion that the defendant is guilty. In other words, there are more rea-sons for judging him guilty than for judging him not guilty, or the reasonsfor judging him guilty are stronger than those for judging him not guilty.Or if the presumption that women generally do not formally accuse men ofrape and testify against them in a court of law unless they have been rapedis granted, we might conclude that there is clear and convincing evidence(or CACE, to use Laudan’s acronym) of the defendant’s guilt in the case.The CACE standard should be understood as saying that there are manymore or stronger reasons for judging him guilty than not. Still, the standardof proof in criminal cases is higher—clear and convincing evidence thatthe defendant is guilty and rebuttal by the prosecution of any evidencedalternative account of the incident in question according to which the de-fendant should be judged not guilty.22 There is, in the case as described, analternative explanation of the events according to which the defendant isnot guilty (namely, that the complainant consented to sexual intercourse),though how well evidenced it is admittedly seems unclear.

Suppose, however, that the prosecution had and could introduce fresh,reliable, and specific character evidence that the defendant is the kind ofperson who commits violent sexual assaults against women, only to subse-quently claim that they consented to the sexual intercourse.23 Again, wemay not often have such evidence based on a defendant’s past criminalrecord, but suppose, for the sake of argument, that we did in a given case. Itis hard to resist the contention that the jury should be given such evidence,though they must be cautioned strongly about its use. True, such evidencemight lead them to leap too quickly to the conclusion that the defendantis guilty. We would still want them to weigh it carefully against or beside thetrace evidence. But character evidence of the requisite kind does seem tohave probative value, perhaps enough to “tip the scales” so as to justify afinding of guilt BARD against the accused, especially if the trace evidenceagainst him is clear and convincing or close to it.

Why is this? The answer, I believe, is that in the kind of case in question,we are in effect asking the jury to decide whether the defendant acted “incharacter.” We know, of course, that people sometimes act out of character—good people do things that they normally would not and bad people refrainfrom misconduct that they would normally engage in. At the same time,

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.




we also know that people quite often, and perhaps usually, act in character.If we did not know this, there would be little point to the whole debateabout character evidence. We must be wary about finding defendants withunsavory characters guilty, but in the case described, we are to supposethat we have, in addition, substantial trace evidence suggesting that thedefendant did act in character. If the trace evidence gets the jury that far,then it does not seem inappropriate for the character evidence to seal thedefendant’s fate.

Granted, there is a risk in allowing the introduction of such evidence—namely, that innocent defendants will on occasion be found guilty. But thereis also a risk if we do not allow its introduction—that guilty defendants willsometimes be found not guilty. If it is argued that we have (or ought to have)a much stronger preference to avoid the former than to avoid the latter,Laudan’s retort seems convincing. We do strongly prefer to avoid punishingthe innocent over not punishing the guilty. That is why we set the standardof proof at such a high level in criminal cases. Yet once the BARD standardis put in place, we should allow the introduction of all relevant evidence.24

Those opposed to allowing the introduction of fresh, reliable, and specificcharacter evidence must convince us that it is irrelevant to determining theguilt or innocence of defendants no matter how carefully it has been vettedby the courts and evaluated, alongside relevant trace evidence, by the jury.And that seems a most unpromising view to defend.

Nonetheless, as the quality of the trace evidence diminishes, so should ourconfidence that probative character evidence can plug the gap, so to speak.I can imagine someone defending the continued use of fresh, specific, andreliable propensity evidence to warrant a finding of guilt BARD in a givencase even if the trace evidence is significantly short of clear and convincing.But in such cases the possibility that the defendant may have acted contraryto his propensity should loom larger. After all, these will be cases in whichthere are some reasons for believing that the defendant did not act incharacter (though perhaps more or stronger reasons to believe that he did)or there is only suggestive trace evidence that he is guilty, but little morethan that. My sense is that a finding of guilt in such cases depends rathertoo much on evidence concerning the defendant’s unpleasant past and notenough on evidence concerning the conduct for which he is on trial.

Again, the extent to which character evidence is fresh, reliable, or specificwill be matters of degree. Suppose, for instance, that while fresh and reliable,the character evidence the prosecution seeks to present shows only that adefendant is prone to acts of violence or predation, though not ones of thespecific kind for which he is currently on trial. The prosecution might beable to show that the rape defendant is the kind of person who steals fromothers or engages in brawls but not that he is a sexual predator who in thepast defended his actions with dubious claims of consent on the part of

24. This line of argument is developed in LAUDAN, supra note 2, ch. 5.




his victims. True, the character evidence suggests that the defendant is notwholly averse to illegally victimizing others and thus might be thought to besomewhat probative. Nevertheless, we should be more reluctant to allow itsintroduction. Why is this? Because if we do, jurors will be implicitly (if notexplicitly) asked to make two worrisome inferences as opposed to one: First,because the defendant is the kind of person who commits other kinds ofcrimes, he is therefore the kind of person who would commit the crime inquestion, and second, because he is the kind of person who would committhe crime in question, he therefore is more likely to have committed it. Thelatter inference is already somewhat worrisome, and the former is more so.If the trace evidence is only up to the PoE standard, then the two propensityinferences forge an arguably quite tenuous link from the trace evidence toa conclusion of guilt BARD. It seems clear that if we admit such propensityevidence at all, we should insist that the trace evidence in the case meetthe CACE standard. And as the character evidence becomes less fresh, lessreliable, or less specifically related to the kind of crime with which thedefendant is charged, even trace evidence meeting that standard arguablywould not be sufficient to establish the defendant’s guilt BARD.

It might be objected that it will be exceedingly difficult for judges to craftinstructions enabling juries properly to understand and use character evi-dence that has been admitted due to its freshness, reliability, and specificity.Even if judges succeed in making vivid the distinction between trace andcharacter evidence and explaining how the former must be clear and con-vincing before the latter can be properly put into play to reach a verdict, wemight worry that the character evidence will displace or simply overwhelmthe trace evidence in the jurors’ minds. Of these two concerns, the latterseems the more difficult one to address. Judges must often formulate andgive complex instructions to juries, and it is not clear that the challengesthey face in helping jurors understand how to weigh and balance characterevidence against trace evidence are different in kind. Whether jurors willfollow the instructions provided and therefore keep character evidence inits proper place, so to speak, is something that might have to be monitoredaggressively by judges. As I note below, we may need to encourage judges toscrutinize and reject verdicts that are not supported by clear and convincingtrace evidence in cases in which character evidence is admitted.

This brings us to cases in which the issue before the court is whether itwas the defendant rather than someone else who committed the crime withwhich the defendant is charged. These kinds of cases are probably morecommon than the nonidentity cases, and it may be that those generallyopposed to the use of character evidence in criminal trials are thinkingmainly about them. Why might fresh, reliable, and specific character evi-dence be seen as having less probative value in these types of cases? Becauseknowing (or reasonably believing) that the defendant is the kind of per-son who would commit the crime in question if given the opportunity tellsus nothing about whether she is the person who committed the crime in




this case. There may have been numerous individuals in the vicinity of thecrime about whom it is true that they would have committed the crime inquestion if given the opportunity. It makes little difference to add that wehave reason to believe that most people act in character most of the time.For that is also true of a wide range of people with criminal propensities.All that fresh, reliable, and specific character evidence tells us is that theprosecution has charged the right kind of person with the crime. In thisregard, it is somewhat like trace evidence that shows that the crime wascommitted by someone with blue eyes. Assuming that the defendant hasblue eyes, such evidence shows that the state has charged the right kind ofdefendant. Still, it is worth noting that character evidence showing the de-fendant to be the right kind of person to have committed the crime actuallyshows less, since the crime may have been committed by someone actingout of character or by someone with uneven or wavering character. Andcharacter evidence is strongly prejudicial, so we must be on guard againstits introduction overwhelming the trace evidence in a given case.

A further complicating factor in identity cases is this: when the perpetratorof a crime is unknown, police tend to focus on individuals in the vicinityof the crime who have past criminal records. This practice of “roundingup the usual suspects” may affect the profile of cases that wind up going totrial.25 When the practice yields actually guilty individuals, they are likelyto plead rather than go to trial. It is the materially innocent who may insiston trials in order to vindicate themselves. This means that in identity cases,a higher percentage of those on trial may in fact be wrongly accused, inpart because of their past records. Jurors may be unaware of these skewingeffects of police practices, though presumably they could be informed ofthem. In any case, the danger that the innocent have been rounded up isreal and should be more troubling in identity cases.

Suppose, for instance, that defendant A has been charged with homicide,and there is clear and convincing trace evidence establishing her guilt. How-ever, suppose also that the evidence is short of BARD conclusive becausethe defendant has provided an alibi that the prosecution has not been fullyable to refute or because some of the physical evidence is consistent withanother individual’s having committed the crime. Would allowing the in-troduction of probative propensity evidence concerning the defendant sealher fate as it did in the nonidentity case? It seems not. Such evidence doesnothing to rebut her alibi or counteract the recalcitrant physical evidence;it only shows her to be the right kind of suspect in the case. There may benumerous other people who are the right kinds of suspects, and propensityevidence against the defendant does nothing to eliminate them. Granted,most jurors, if presented with such propensity evidence in the kind of casedescribed, might find the defendant guilty. But the question is whether they

25. See RICHARD O. LEMPERT, SAMUEL R. GROSS & JAMES S. LIEBMAN, A MODERN APPROACH TO

EVIDENCE LAW, 327–328 (3d ed. 2000).




should do so—whether such evidence does anything at all to bridge the gapbetween CACE evidence and evidence BARD. It is hard to see how it does.

There might be some identity cases in which propensity evidence is moreprobative. Consider a case in which A and B are both suspected of havingcommitted homicide and where the prosecution can establish not only thatthey are the only two who could have committed it but that only one ofthem did so. The problem for the courts is determining which of the twocommitted the crime. Suppose that the trace evidence strongly suggests thatit is A rather than B who committed the homicide, so the state charges Aand the case proceeds to trial. Suppose, however, that the trace evidenceis somewhat short of being BARD convincing. B was, after all, at the sceneof the homicide, and A testifies that it was B who did the killing. Yet thephysical evidence points toward A, and B testifies that it was A who did thekilling. Suppose also that there is fresh, reliable, and specific propensityevidence showing that A is the kind of person who is prone to violenceagainst others, whereas nothing of the sort exists regarding B. In that caseit does not seem unreasonable for a jury to employ the propensity evidenceto reach the conclusion that A should be found guilty of the homicide. Byhypothesis, other individuals with homicidal tendencies who might havebeen the killer have been ruled out, and both the trace and propensityevidence point rather decisively toward A.

But suppose that there is propensity evidence showing that B also hasclear homicidal tendencies. Then what? It still seems that the jury mightact reasonably in finding A guilty, assuming that it knows that either A or Bmust have done the killing. The physical evidence points toward A, as doesthe propensity evidence. The jury might be given pause by the propensityevidence against B, but it would likely reason (and plausibly so) that if oneof the two did the killing, A is far more likely to have done so. It mighteven reasonably reach such a conclusion if the trace evidence against Ais somewhat weaker than clear and convincing. Still, it is easy to imagineharder cases. For instance, suppose that the trace evidence does not pointdecisively or even very clearly toward either suspect, but the propensityevidence points exclusively toward one of them. We might predict that ajury in a trial for A would find A guilty if the propensity evidence against Awere damning, on the reasoning that if one of the two committed homicide,A is the more likely culprit. The same prediction would hold if the probativepropensity evidence were against B.

But would juries act responsibly in reaching these conclusions? That is atough call. On a strict interpretation of the BARD standard, one would thinknot. There are two plausible suspects, the trace evidence is inconclusive, andall jurors have to go on is propensity evidence that tells them of a defendant’stendencies, but nothing more. Reasonable doubt seems to exist, in the sensethat there is an alternative explanation of events exonerating the defendant(namely, the other suspect did the killing) that the state may not havesuccessfully rebutted. Jurors might in fact convict the defendant against




whom the character evidence points, but it is not apparent that they shoulddo so. Of course, if the character evidence implicates both or neither of thedefendants, then juries in their respective trials pretty clearly should findthem not guilty in spite of the powerful motivations they will have to hangthe crime on someone.

It is important to notice how things change if A and B are not the onlytwo possible killers but the only two that the police and prosecution haveidentified as such and focused their energies upon. In that sort of case,clear and convincing evidence that A or B committed the homicide, evenwhen combined with credible propensity evidence regarding the individualin question, does not seem sufficient to warrant a conclusion of guilt BARD.Again, suppose that the individual against whom such evidence is stackedoffers an alibi that the prosecution does not fully rebut, or that there areone or more pieces of physical evidence that cast doubt on his guilt. As inthe earlier homicide case, the propensity evidence does not bridge the gapbetween the trace evidence and a finding of guilt BARD because it is simplyunknown how many other individuals might have similar propensities buthave exhibited them for the first time, or who, lacking them altogether,acted out of character.

Summarizing my conclusions so far, the criminal records of individualsare unlikely to reveal much about their broader characters, though theymay reveal things about their more specific propensities or past-conductpatterns. The extent to which propensity evidence is probative in a given casedepends on its reliability, freshness, and specificity. It is arguably permissibleto introduce highly probative propensity evidence in a criminal trial despiteits tendency to bias jurors against the defendant. However, jurors shouldbe strongly encouraged not to let their knowledge of character evidenceinterfere with their evaluation of the trace evidence. Even when the traceevidence against a defendant is clear and convincing, credible characterevidence has more probative value in cases where the point of a trial is todetermine whether a defendant acted criminally than in cases where a trialmust determine if it is the defendant who acted criminally.

III. CHARACTER EVIDENCE UNDER LESS-THAN-IDEALCONDITIONS

In my introductory remarks, I suggest that some of the debate about char-acter evidence may derive from the failure to make a distinction betweenits introduction and use under ideal conditions—ones strongly conduciveto error avoidance in criminal trials—and its introduction and use underless-than-ideal conditions. As we see above, fresh, reliable, and specific char-acter evidence must be used cautiously by jurors. They must not allow it toaffect their evaluation of the trace evidence and they must use it with theknowledge that both good and bad people sometimes act out of character.




They must understand and accept the presumption of innocence accruingto defendants and that it is the state that bears the burden of proof in crim-inal cases. That burden is a stringent one, requiring the persuasive rebuttalof all evidenced alternative explanations to the state’s version of events inthe case. Jurors must be able to distinguish the BARD standard from theCACE and PoE standards and recognize and apply these distinctions to thevarious types of cases in which character evidence might be relevant. In caseswhere the identity of the criminal agent is at issue, they must recognize thelimitations of fresh, reliable, and specific character evidence. In particular,they must keep in mind that the defendant with known criminal tendenciesbefore them may be only one possible perpetrator of the criminal act.

Given the lengthy list of conditions that must be met for character ev-idence to be used appropriately and well, it is important to consider justhow often these conditions are apt to be satisfied. They may, in fact, oftennot be, and in ways that bear directly on the advisability of introducingcharacter evidence into criminal trials. In the first place, jurors will needconsiderable help from judges and defense attorneys in grasping and apply-ing the relevant concepts and distinctions. As we see above, some advocatesof relaxed character-evidence rules argue that the weakly probative kindscan be flagged by defendants’ attorneys and shown to be of such dubiousvalue that jurors (or, less often, judges) will not be misled by them.26 But notall defendants will have adequately compensated or experienced criminal-trials attorneys, and this might diminish our enthusiasm for permitting theintroduction of such evidence. Still, most attorneys probably will be awareof the dangers of character evidence and motivated enough to monitor itsintroduction and insist that juries be given appropriate instructions in itsuse.

Second, it is apparent that the judges presiding over trials will vary notonly in their sympathies toward defendants but also in the care with whichthey screen dubious character evidence or instruct jurors about its probativevalue. They will also vary in the extent to which they emphasize and explainclearly to jurors such crucial legal concepts as the presumption of innocenceand the BARD standard (or, in the case of bench trials, understand or adhereto these requirements themselves). As Laudan makes abundantly clear inhis discussion of these matters, there is widespread confusion among bothjudges and legal scholars about these core features of criminal trials.27 To theextent that such confusion pervades judges’ decisions or their instructionsto jurors about character evidence, we have reason to be concerned abouthow well those who try the facts will evaluate such evidence. Moreover, even ifwe were to imagine improved instructions from judges to jurors about these

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 “providedthat the arguments from counsel and instructions from the judge inform the jury’s assessmentof reliability.” See also id. at 24–25.

27. Id. at 32–51.




complex legal concepts and the kinds of evidence they are to consider orignore, juror studies tell us that there is some tendency for jurors to ignoreinstructions from judges in cases in which these instructions conflict withwhat jurors regard as just outcomes.28 Defendants whose disreputable pastsare revealed might not fare well in court regardless of the strength of thetrace evidence against them or the instructions given to jurors.

Third, jurors will vary widely in their levels of education, capacities forcomplex reasoning, and attitudes toward police, prosecutors, and the crim-inal justice system as a whole. They will also differ in their abilities to under-stand, apply, or abide by complex legal concepts. There is some evidence,for instance, that many jurors do not understand or accept the presumptionof innocence, preferring instead to presume defendants guilty until they areproven innocent.29 This is an especially powerful reason to avoid puttingweakly probative character evidence in their hands and it might be a reasonfor not providing them with highly probative character evidence. Similarly,we might wonder about how well most jurors understand the BARD, CACE,and PoE standards. Given the evident confusion among judges and legalscholars about them, it would not be surprising to find that many jurorsare uncertain or confused about what they mean or how to apply them.Again, better and more frequent instructions from the judge might aid ju-rors in this regard. However, if reliable character evidence is introducedinto a trial, judges will also have to explain the complex interplay betweenit and trace evidence and identify the circumstances in which character ev-idence is useful in enabling jurors to reach a conclusion of guilt BARD. Inaddition, jurors must be prepared to entertain alternative interpretationsof the trace evidence. Only then will they be in a position to see how farthe trace evidence carries them toward the conclusion that the defendantis guilty BARD. Yet we might wonder in general how capable or motivatedjurors are to perform these complex hermeneutical tasks and in particularhow capable or motivated they will be to do so if presented with evidencesuggesting that a defendant has a highly unsavory character.30

28. See Devine, Clayton, Dunford, Seying & Pryce, supra note 15, at 666–667. See also ShariSeidman Diamond, Beyond Fantasy and Nightmare: A Portrait of the Jury, 54 BUFF. L. REV. 717–763(2006), at 752.

29. See Mitchell J. Frank and Dawn Borschard, The Silent Criminal Defendant and the Presumptionof Innocence: In the Hands of Real Jurors, Is Either of Them Safe?, 10 LEWIS & CLARK L. REV. 237–285(2006), at 249–251; and Keith A. Findley and Michael S. Scott, The Multiple Dimensions of TunnelVision 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 issuch as to inflame “unfair prejudice” against the defendant. One can imagine that certain kindsof fresh, reliable, and specific criminal histories would do so (e.g., of violent sex crimes againstchildren). Still, the rule requires the judge to balance the probative value of the evidenceagainst its prejudicial effects. Not only is this a difficult task, but, as Laudan points out, judgesmay not be in a position really to know what kinds of evidence invariably lead jurors to respondviscerally to defendants, thereby stimulating jurors to make dubious inferences from relevantbut inflammatory evidence. Laudan prefers to let jurors have all relevant evidence, especially ifthey can be strongly cautioned and carefully instructed by the judge in their use and evaluation




Fourth, as has already been noted, our willingness to allow past-conductevidence into criminal trials should depend in part on its reliability. This isespecially true with regard to defendants’ past criminal records. It is appar-ent that defendants’ criminal records can sometimes say more about theopportunities available to them (or, in the case of severely socially depriveddefendants, not available), the activities of the police (in particular, whomthey tend to routinely target or investigate), or the political or personalagendas of prosecutors than they say about defendants and their charac-ters. One does not have to be completely cynical about the police andprosecutors to recognize that they vary considerably in their capabilities,respect for the law, and integrity. Indeed, one does not have to search toofar to find cases where police have done poor jobs of investigating crimes orhave inexplicably targeted suspects, all the while ignoring important excul-patory evidence and other, more likely suspects, and where prosecutors haveso single-mindedly focused on getting convictions that they have employedtactics (e.g., the use of jailhouse snitches) that are deeply problematic ifnot unethical.31 One might hope that the miscarriages of justice that resultfrom police or prosecutorial misconduct are more the exception than therule. But their existence should make us wary of relying in an uncritical wayon defendants’ past criminal records. Perhaps long criminal records showsomething significant about defendants’ character in ways that short onesdo not, but even with the former we might want to exercise some caution.

Again, the preceding set of concerns has particular relevance for ourevaluation of the extent or ways in which more character evidence mightbe used in criminal trials. Such evidence is not only potentially highly prej-udicial against defendants, it is also evidence that must be utilized in waysthat complicate the decision-making tasks confronting jurors. It is possible,of course, to envision reforms in the criminal justice system generally andin criminal trials specifically that would reduce the hazards of permittingjurors access to character evidence in their deliberations. More generousfunding of defense counsel for indigent defendants would have salutary ef-fects of many kinds and would likely produce more and better challenges tothe introduction and use of character evidence. Better and more insistentinstructions from judges in both the early and late stages of trials might alsohelp, although, as we see above, there is evidence that jurors do not heedthem in some instances.

More radically, we might consider the feasibility of replacing citizen ju-rors with lay judges who, together with regular judges, weigh and evaluate

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 railsis 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 ofvarious kinds can infect criminal investigations and trials, see Findley & Scott, supra note 29.




the evidence against criminal defendants.32 The advantage of employinglay judges is that they gain considerable experience trying cases and mightbe expected to adhere better to the rules of evidence, abide by relevantlegal standards of proof, and follow the instructions of the regular judgeswith whom they work on a continuing basis. Another possibility would beto require jurors to produce reasons for their verdicts, so that the presidingjudge could better evaluate whether they have followed her instructions,observed legal standards of proof, and correctly weighed probative charac-ter evidence against trace evidence. Such a requirement will be resisted bysome on theoretical or practical grounds, but it is not apparent why jurors’reasoning should be insulated from more scrutiny. Independently of sucha requirement, we might strongly encourage (or better, require) judges toevaluate jury decisions more often or rigorously and set them aside whenthey are “unsafe,” that is, not supported by the evidence.33 The obligationto do this could be made especially stringent in identity cases where char-acter evidence has been introduced alongside trace evidence, though suchan obligation might exist in the nonidentity cases as well. Judges would beunderstood as duty-bound to determine whether the trace evidence is atleast clear and convincing. Individuals convicted of crimes based in part oncharacter evidence would have grounds for appealing their convictions inthe absence of such a judicial determination.

Yet if we encourage or require judges to reject unsafe convictions, shouldwe not also require them to overturn acquittals, especially in the nonidentitycases in which the trace evidence was, in their opinion, clear and convincingand the character evidence fresh, reliable, and specific? In other words, itmight seem that I am concerned only with the correction of errors by ju-ries when they produce inappropriate convictions of defendants, not whenthey produce inappropriate acquittals. But error is error, whether it is tothe unjust disadvantage or advantage of defendants. This is an importantpoint, though it raises issues that go beyond the scope of this paper. Even ifwe set aside the formidable constitutional obstacles to judges overturningacquittals by juries, we would have to confront the debate over the desirabil-ity of jury nullification.34 Acquittals in the face of overwhelming evidenceagainst defendants arguably serve important purposes that convictions inspite of insufficient evidence against them do not. Hence there might bemore reason to guard against the latter than the former.

32. See Douglas G. Smith, Structural and Functional Aspects of the Jury: Comparative Analysis andProposals for Reform, 48 ALA. L. REV. 441–581 (1997), at 454–469.

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); Thom Brooks, A Defense of Jury Nullification, 10RES PUBLICA 401–423 (2004); and Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Lawof Inconsistent Verdicts, 111 HARV. L. REV. 771–835 (1998), esp. at 794–801.




Finally, as already suggested, any character evidence to be introducedagainst a defendant should be properly vetted by the judge, with hearingsconducted away from the jury. This would permit defense counsel to chal-lenge inaccuracies or other problematic features of the defendant’s criminalrecord. Moreover, if the hearings were extended to character evidence thatthe prosecution sought to use to impeach a defendant’s testimony at histrial, they would have other laudable consequences. Not only would de-fendants with criminal records be more likely to testify in many cases andthereby offer jurors their side of the story, but factually innocent ones withcriminal records would have less to fear from doing so. As things currentlystand, defendants who wish to testify risk impeachment based on theirpast records, regardless of the relevance of their records to the currentcharges against them. Such impeachment is likely to be highly prejudicialto them. Moreover, defendants who elect not to testify for fear that theirpast records will be raised face increased odds that they will be convictedeven if they are materially innocent.35 That is not only unfortunate, it isunnecessary.

IV. CONCLUDING REMARKS

In the absence of reforms of the kinds noted in the previous section, wemight reasonably continue to permit the introduction of specific and reli-able past-conduct evidence, drawn from a defendant’s previous convictions,that establishes an element of the prosecution’s case (e.g., modus operandi)or rebuts defense claims (e.g., concerning a defendant’s knowledge of howto commit a type of crime). Such evidence does not really concern thedefendant’s character or directly invite jurors to draw inferences from thekind of person the defendant is to a finding of guilt or innocence in thecurrent case. Its probative value is high enough to outweigh the risk thatit will have prejudicial effects. So-called character testimony by witnessesabout a defendant’s reputation in the community appears to have weakprobative value but might be allowed since it is unlikely to have strong prej-udicial effects and jurors can be cautioned against reading too much intoit even by inexperienced or underpaid defense attorneys of the kinds manydefendants are apt to have. The same is true for witness testimony involvingdirect observation of a defendant’s conduct. It, too, may tell us little aboutthe defendant’s character or even specific propensities but it may provideuseful evidence about a defendant’s conduct in circumstances similar tothose of the crime for which she is on trial. Again, even overburdened orinexperienced defense counsel should be able to challenge such evidenceor warn jurors about its reliability or relevance.

35. The effects of criminal records on the willingness of defendants to testify at their trialsare nicely summarized in LEMPERT, GROSS & LIEBMAN, supra note 25, at 327–328.




However, my sense is that in the absence of substantial reforms, we shouldotherwise resist the introduction of a defendant’s past criminal record intoa trial, especially in cases where the identity of the criminal agent is at issue.Granted, a defendant’s criminal record may furnish us with fresh, reliable,and specific evidence concerning her propensities. In nonidentity cases, itmay be possible for jurors to resist the biasing effects of such evidence andto consider it independently of and alongside the trace evidence againstdefendants. There is the danger that jurors will not be able to do this andthat they will not receive sufficient assistance in doing so from the judgeor defense counsel for the accused. Yet these dangers seem worse in theidentity cases, where, in addition, jurors must bear in mind the fact thatthere are likely to be other people with the relevant propensity (and somewithout it) who might have committed the crime in question.

It has been argued that the complications posed by character evidenceare no greater in degree than or different in kind from those posed by otherkinds of evidence that we routinely ask jurors to confront.36 If jurors cannotbe trusted to avoid inferential error with regard to character evidence, thenthere is little reason to believe that they can be trusted to do so with regardto other types of evidence. But this argument seems unconvincing for tworeasons. First, we must consider the real or alleged problems with each typeof evidence on a case-by-case basis, both to assess the probative value of theevidence in question and to weigh the likelihood of its producing infer-ential errors by jurors. Second, once we have done so, we might plausiblyexclude certain kinds of evidence (because their probative value is weak ornonexistent or their effects are too prejudicial) or allow them, but only if wecan be reasonably assured that jurors will be cautioned about the evidenceand receive appropriate help in using it. We should, in other words, resistthe invitation to view or treat all kinds of evidence in the same way simplybecause any of them might be misunderstood or misused by those entrustedwith determining the fate of criminal defendants.

Laudan argues against “defendant-friendly” rules that exclude probativeevidence from trials. His view is that the presumption of innocence and theBARD standard already favor defendants (and rightly so, given our strongpreference for not convicting the innocent over convicting the guilty). Rulesbarring the introduction of character evidence, in addition to being incon-sistent, make it even more difficult for the state to convict defendants andthereby create “distributionist creep.”37 Instead of protecting the innocent,such rules tend to protect the guilty, and that is a kind of error that weshould equally attempt to avoid. Yet Laudan seems more convinced of theprobative value of a defendant’s past criminal record than I am and moresanguine about the abilities of jurors to utilize character evidence properly.

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.




The more important point is this: in urging considerable caution in theuse of character evidence, my aim is not to add protections to defendantsthat go beyond the presumption of innocence and the BARD standard.Rather, it is to try to ensure that the presumption of innocence is not subtlyundermined by the introduction of a defendant’s past criminal record andthat defendants are convicted only when the trace and character evidence,taken together, satisfy the BARD standard.


Documents

1 Criminal Record, Character Evidence, And the Criminal Trial