In Defense of the Character Evidence Prohibition: Foundations of the Rule Against Trial by Character

Indiana Law Journal

Volumn 73, Issue 4, 1998, Pages 1161-1215

  Leonard, David P ^a  

^a Loyola Law School Los Angeles   (United States)

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EID: 0032352014     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (340)

1. M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 IOWA L. REV. 325, 325 (1956); see also Major Stephen R. Henley, Caveat Criminale: The Impact of the New Military Rules of Evidence in Sexual Offense and Child Molestation Cases, ARMY LAW., March 1996, at 82, 86 ("American jurisprudence is grounded in the theory that courts try cases rather than persons."); Ernest E. Williams, Evidence to Show Intent, 23 L.Q. REV. 28 (1907). The English law of evidence, in sharp contradistinction, for example, to the French law, will not permit a man's chances of proving his innocence of the offence with which he is charged to be prejudiced by a revelation to the jury of other misdeeds of a like character committed by him, or of any evidence the purport of which is to proclaim him a "bad man," and as prima facie likely to be guilty of the offence with which he is charged. The accused is on his trial for the specific crime alleged in the indictment: he is not in the dock to answer for his life-history. Id. at 30. In United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980), the court wrote: "It is fundamental to American jurisprudence that 'a defendant must be tried for what he did, not for who he is.'" Id. at 523 (quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977)). In Myers, the court also wrote that the rule is "[a] concomitant of the presumption of innocence." Myers, 550 F.2d at 1044.
2. M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 IOWA L. REV. 325, 325 (1956); see also Major Stephen R. Henley, Caveat Criminale: The Impact of the New Military Rules of Evidence in Sexual Offense and Child Molestation Cases, ARMY LAW., March 1996, at 82, 86 ("American jurisprudence is grounded in the theory that courts try cases rather than persons."); Ernest E. Williams, Evidence to Show Intent, 23 L.Q. REV. 28 (1907). The English law of evidence, in sharp contradistinction, for example, to the French law, will not permit a man's chances of proving his innocence of the offence with which he is charged to be prejudiced by a revelation to the jury of other misdeeds of a like character committed by him, or of any evidence the purport of which is to proclaim him a "bad man," and as prima facie likely to be guilty of the offence with which he is charged. The accused is on his trial for the specific crime alleged in the indictment: he is not in the dock to answer for his life-history. Id. at 30. In United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980), the court wrote: "It is fundamental to American jurisprudence that 'a defendant must be tried for what he did, not for who he is.'" Id. at 523 (quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977)). In Myers, the court also wrote that the rule is "[a] concomitant of the presumption of innocence." Myers, 550 F.2d at 1044.
3. M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 IOWA L. REV. 325, 325 (1956); see also Major Stephen R. Henley, Caveat Criminale: The Impact of the New Military Rules of Evidence in Sexual Offense and Child Molestation Cases, ARMY LAW., March 1996, at 82, 86 ("American jurisprudence is grounded in the theory that courts try cases rather than persons."); Ernest E. Williams, Evidence to Show Intent, 23 L.Q. REV. 28 (1907). The English law of evidence, in sharp contradistinction, for example, to the French law, will not permit a man's chances of proving his innocence of the offence with which he is charged to be prejudiced by a revelation to the jury of other misdeeds of a like character committed by him, or of any evidence the purport of which is to proclaim him a "bad man," and as prima facie likely to be guilty of the offence with which he is charged. The accused is on his trial for the specific crime alleged in the indictment: he is not in the dock to answer for his life-history. Id. at 30. In United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980), the court wrote: "It is fundamental to American jurisprudence that 'a defendant must be tried for what he did, not for who he is.'" Id. at 523 (quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977)). In Myers, the court also wrote that the rule is "[a] concomitant of the presumption of innocence." Myers, 550 F.2d at 1044.
4. Generally, character evidence is said to fall into three categories: reputation, opinion, and specific instances of conduct. See FED. R. EVID. 405. The present inquiry primarily concerns the use of specific instances of a person's conduct (including past states of mind) as circumstantial proof of a particular character trait.
5. For a general canvassing of the character evidence rules, see Richard L. Wydick, Character Evidence: A Guided Tour of the Grotesque Structure, 21 U.C. DAVIS L. REV. 123 (1987). See also sources cited infra note 12.
6. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified in scattered sections of 16, 18, 21, 28, and 42 U.S.C.).
7. See FED. R. EVID. 413-15. For a discussion of societal perceptions about crime see infra notes 228-29 and accompanying text.
8. See infra note 229 and accompanying text.
9. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
10. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
11. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
12. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
13. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
14. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
15. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
16. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
17. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
18. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
19. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note 1 (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 CHI.-KENT L. REV. 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 FORDHAM URB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprinted in 159 F.R.D. 51, 52 (1995).
20. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of Uncharged Sexual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 950-51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, Federal Rule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PITT. L. REV. 107 (1995).
21. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of Uncharged Sexual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 950-51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, Federal Rule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PITT. L. REV. 107 (1995).
22. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of Uncharged Sexual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 950-51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, Federal Rule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PITT. L. REV. 107 (1995).
23. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of Uncharged Sexual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 950-51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, Federal Rule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PITT. L. REV. 107 (1995).
24. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of Uncharged Sexual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 950-51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, Federal Rule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PITT. L. REV. 107 (1995).
25. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of Uncharged Sexual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 950-51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, Federal Rule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PITT. L. REV. 107 (1995).
26. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of Uncharged Sexual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 950-51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, Federal Rule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PITT. L. REV. 107 (1995).
27. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of Uncharged Sexual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 950-51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, Federal Rule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PITT. L. REV. 107 (1995).
28. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of Uncharged Sexual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 950-51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, Federal Rule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PITT. L. REV. 107 (1995).
29. See Richard C. Reuben, Some Judges Oppose Evidence Amendment, A.B.A. J., Jan. 1995, at 20, 20 ("'There is no question that it is the beginning of an experiment . . . to see whether, as a general proposition, we should just abolish the bar altogether.'") (omission in original) (quoting Professor Edward Imwinkelried).
30. Taslitz, supra note 8, at 495.
31. There are, of course, many other potential uses of character evidence; they are not under consideration in this Article. For example, the law is permissive with regard to character evidence when character is itself an essential element of a claim or defense. See FED. R. EVID. 405(b). Character evidence is also admissible under some situations when offered to prove the credibility or lack of credibility of a witness. See id. Rule 608 (concerning evidence of reputation, opinion, and conduct when challenging a witness's truthful character); id. Rule 609 (concerning evidence of criminal convictions for impeaching a witness).
32. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
33. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
34. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
35. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
36. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
37. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
38. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
39. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
40. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of
41. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
42. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
43. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
44. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL. 504 (1991), William G. Hale, Some Comments on Character Evidence and Related Topics, 22 S. CAL. L. REV. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy and Its Counterweights: A Brief Excursion Through Article IV of the Proposed Federal Rules of Evidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proof in the Law of Evidence - A Summary, 18 U. CIN. L. REV. 283 (1949), H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, Character Evidence Under the Federal Rules: A Puzzle with Missing Pieces, 48 U. CIN. L. REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, Character Evidence and Prior Bad Acts, N.Y. L.J., May 10, 1996, at 3.
45. A satisfactory definition of "character" is elusive. Wigmore defined character "as the actual moral or psychical disposition." 1A JOHN HENRY WIGMORE, EVIDENCE § 52, at 1148 (Peter Tillers rev., 1983). Elsewhere, Wigmore defined character as "any and every quality or tendency of a person's mind, existing originally or developed from his native substance, and more or less permanent in their existence." JOHN HENRY WIGMORE, THE SCIENCE OF JUDICIAL PROOF § 52, at 103 (3d ed. 1937). Charles Tilford McCormick's treatise defines character as "a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness." 1 CHARLES TILFORD MCCORMICK ON EVIDENCE § 195, at 825 (John William Strong ed., 4th ed. 1992) [hereinafter MCCORMICK ON EVIDENCE]. Another author states that the law treats character as "a collection of 'traits,' each a self-contained packet of potential conduct consistent with previously observed reactions to events, people, or things." Uviller, supra note 12, at 849. Almost certainly, "character" carries moral connotations.
46. A satisfactory definition of "character" is elusive. Wigmore defined character "as the actual moral or psychical disposition." 1A JOHN HENRY WIGMORE, EVIDENCE § 52, at 1148 (Peter Tillers rev., 1983). Elsewhere, Wigmore defined character as "any and every quality or tendency of a person's mind, existing originally or developed from his native substance, and more or less permanent in their existence." JOHN HENRY WIGMORE, THE SCIENCE OF JUDICIAL PROOF § 52, at 103 (3d ed. 1937). Charles Tilford McCormick's treatise defines character as "a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness." 1 CHARLES TILFORD MCCORMICK ON EVIDENCE § 195, at 825 (John William Strong ed., 4th ed. 1992) [hereinafter MCCORMICK ON EVIDENCE]. Another author states that the law treats character as "a collection of 'traits,' each a self-contained packet of potential conduct consistent with previously observed reactions to events, people, or things." Uviller, supra note 12, at 849. Almost certainly, "character" carries moral connotations.
47. See FED. R. EVID. 404(a) ("Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion."); id. Rule 404(b) ("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.").
48. See id. Rule 404(b) ("Evidence of other crimes, wrongs, or acts . . . may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . ."). Unfortunately, the law regarding when evidence satisfies this alternative analysis is quite confused. See Richard B. Kuhns, The Propensity to Misunderstand the Character of Specific Acts Evidence, 66 IOWA L. REV. 777, 777 (1981).
49. See FED. R. EVID. 404(a)(1) (permitting the use of character evidence by a criminal defendant, and by the government to rebut defendant's evidence); id. Rule 404(a)(2) (permitting the use of evidence of the victim's character under certain circumstances).
50. 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 57, at 456 (3d ed. 1940). Thayer also recognized this rule, writing that it "forbids the use of a person's general reputation or actual character, as a basis of inference to his own conduct." JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 525 (Boston, Little, Brown & Co. 1898); see also 1 MCCORMICK ON EVIDENCE, supra note 13, § 189, at 793 ("[E]vidence of character in any form . . . generally will not be received to prove that a person engaged in certain conduct or did so with a particular intent on a specific occasion, so-called circumstantial use of character.") (footnote omitted); H.C. UNDERHILL, A TREATISE ON THE LAW OF CRIMINAL EVIDENCE § 167, at 291 (John Lewis Niblack ed., 4th ed. 1935) ("Except so far as the character of the accused for veracity may be attacked when he is a witness, the state can not show his bad character in the first instance, i.e., before he offers to prove his good character.").
51. 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 57, at 456 (3d ed. 1940). Thayer also recognized this rule, writing that it "forbids the use of a person's general reputation or actual character, as a basis of inference to his own conduct." JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 525 (Boston, Little, Brown & Co. 1898); see also 1 MCCORMICK ON EVIDENCE, supra note 13, § 189, at 793 ("[E]vidence of character in any form . . . generally will not be received to prove that a person engaged in certain conduct or did so with a particular intent on a specific occasion, so-called circumstantial use of character.") (footnote omitted); H.C. UNDERHILL, A TREATISE ON THE LAW OF CRIMINAL EVIDENCE § 167, at 291 (John Lewis Niblack ed., 4th ed. 1935) ("Except so far as the character of the accused for veracity may be attacked when he is a witness, the state can not show his bad character in the first instance, i.e., before he offers to prove his good character.").
52. 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 57, at 456 (3d ed. 1940). Thayer also recognized this rule, writing that it "forbids the use of a person's general reputation or actual character, as a basis of inference to his own conduct." JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 525 (Boston, Little, Brown & Co. 1898); see also 1 MCCORMICK ON EVIDENCE, supra note 13, § 189, at 793 ("[E]vidence of character in any form . . . generally will not be received to prove that a person engaged in certain conduct or did so with a particular intent on a specific occasion, so-called circumstantial use of character.") (footnote omitted); H.C. UNDERHILL, A TREATISE ON THE LAW OF CRIMINAL EVIDENCE § 167, at 291 (John Lewis Niblack ed., 4th ed. 1935) ("Except so far as the character of the accused for veracity may be attacked when he is a witness, the state can not show his bad character in the first instance, i.e., before he offers to prove his good character.").
53. The rule provides exceptions only for evidence of the character of the "accused" and of the "victim of a crime," terms that are generally taken to limit the exceptions to criminal cases. See, e.g., Hynes v. Coughlin, 79 F.3d 285, 291-93 (2d Cir. 1996) (refusing to admit evidence of plaintiff's prison disciplinary record to prove his assaultive character in a § 1983 action against corrections officers for unreasonable use of force); Charles C. Marvel, Annotation, Admissibility of Evidence of Character or Reputation of Party in Civil Action for Assault on Issues Other than Impeachment, 91 A.L.R.3d 718, 723 (1979) (stating "[t]he widely recognized principle that evidence of the character or reputation of the party is ordinarily . . . inadmissible in a civil action"). A few cases have applied the exceptions to a limited number of civil actions. See Perrin v. Anderson, 784 F.2d 1040 (1986) (holding that evidence of character may be admitted in a civil action for violation of a person's civil rights where the circumstances make the case analogous to a criminal murder prosecution, but holding the evidence at issue in the case inadmissible, however, because it took the form of specific instances of conduct instead of reputation or opinion).
54. 1 WIGMORE, supra note 17, § 64, at 472-73 (emphasis in original).
55. For discussion of the psychological literature, see Davies, supra note 12, Leonard, supra note 12, Mendez, supra note 12, and Taslitz, supra note 12. For a recent article exploring the current state of psychological theory, see Miguel A. Méndez, The Law of Evidence and the Search for a Stable Personality, 45 EMORY L.J. 221 (1996).
56. For discussion of the psychological literature, see Davies, supra note 12, Leonard, supra note 12, Mendez, supra note 12, and Taslitz, supra note 12. For a recent article exploring the current state of psychological theory, see Miguel A. Méndez, The Law of Evidence and the Search for a Stable Personality, 45 EMORY L.J. 221 (1996).
57. For discussion of the psychological literature, see Davies, supra note 12, Leonard, supra note 12, Mendez, supra note 12, and Taslitz, supra note 12. For a recent article exploring the current state of psychological theory, see Miguel A. Méndez, The Law of Evidence and the Search for a Stable Personality, 45 EMORY L.J. 221 (1996).
58. For discussion of the psychological literature, see Davies, supra note 12, Leonard, supra note 12, Mendez, supra note 12, and Taslitz, supra note 12. For a recent article exploring the current state of psychological theory, see Miguel A. Méndez, The Law of Evidence and the Search for a Stable Personality, 45 EMORY L.J. 221 (1996).
59. For discussion of the psychological literature, see Davies, supra note 12, Leonard, supra note 12, Mendez, supra note 12, and Taslitz, supra note 12. For a recent article exploring the current state of psychological theory, see Miguel A. Méndez, The Law of Evidence and the Search for a Stable Personality, 45 EMORY L.J. 221 (1996).
60. For surveys of state adoption of the Federal Rule of Evidence 404(a), which governs the use of character for this purpose, see 1 GREGORY P. JOSEPH & STEPHEN A. SALTZBURG, EVIDENCE IN AMERICA ch. 14 (1987 & Supp. 1994), and 6 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE T-30 to T-36 (Joseph M. McLaughlin ed., 2d ed. 1997).
61. For surveys of state adoption of the Federal Rule of Evidence 404(a), which governs the use of character for this purpose, see 1 GREGORY P. JOSEPH & STEPHEN A. SALTZBURG, EVIDENCE IN AMERICA ch. 14 (1987 & Supp. 1994), and 6 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE T-30 to T-36 (Joseph M. McLaughlin ed., 2d ed. 1997).
62. 1 WIGMORE, supra note 17, § 194, at 646; see id. § 194, at 646 n. 1 (citing a number of English cases, dating to the seventeenth century).
63. 3 id. § 923, at 450.
64. Some of the oldest cases Wigmore cited were Hampden's Trial, 9 How. St. Tr. 1053 (K.B. 1684), and Harrison's Trial, 12 How. St. Tr. 833 (Old Bailey, London 1692). See 1 WIGMORE, supra note 17, § 194, at 646 n.1. In the former, Judge Withins stated: You know the case lately adjudged in this Court; a person was indicted for forgery, we would not let them give evidence of any other forgeries but that for which he was indicted, because we would not suffer any raking into men's course of life to pick up evidence that they cannot be prepared to answer to. Hampden's Trial, 9 How. St. Tr. at 1103. In Harrison's Trial, defendant was charged with murder. The prosecution called a witness to relate defendant's felonious conduct a year earlier. Lord Chief Justice Holt stated: "Hold, what are you doing now? Are you going to arraign his whole life? Away, away! That ought not to be; that is nothing to the matter." Harrison's Trial, 12 How. St. Tr. at 864.
65. THAYER, supra note 17, at 525.
66. See Julius Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 HARV. L. REV. 988 (1938); Julius Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 HARV. L. REV. 954 (1933) [hereinafter Stone, England].
67. See Julius Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 HARV. L. REV. 988 (1938); Julius Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 HARV. L. REV. 954 (1933) [hereinafter Stone, England].
68. See Julius Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 HARV. L. REV. 988 (1938); Julius Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 HARV. L. REV. 954 (1933) [hereinafter Stone, England].
69. Stone, England, supra note 26, at 958.
70. See infra notes 41-43 and accompanying text.
71. 12 How. St. Tr. 927 (K.B. 1692).
72. The Duke of Norfolk claimed that Germaine "did, by unlawful ways and means, entice away his duchess, by which means he had not the benefit of her society; and, by lascivious conversation, committed adultery with her, and caused her to commit adultery." Id. at 928.
73. Witnesses testified to seeing defendant and the Duchess in bed together during the earlier period. See id. at 929-33.
74. Among other things, witnesses testified to seeing the defendant and the Duchess together under assumed names. Defendant called into question the credibility of the one witness whose testimony about the latter period was most incriminating. See id. at 934-45.
75. See id. at 939, 945.
76. Id. at 945.
77. Id. at 945-46.
78. Id. at 945. The court's determination to admit the evidence for one purpose while forbidding its consideration for another suggests that the court accepted the key assumption underlying the doctrine of limited admissibility: that the jury can be expected to differentiate among potential uses of evidence and that it will abide by an instruction to ignore the evidence for certain logically relevant purposes. For detailed consideration of the doctrine of limited admissibility, see DAVID P. LEONARD, THE NEW WIGMORE: A TREATISE ON EVIDENCE: SELECTED RULES OF LIMITED ADMISSIBILITY ch. 1 (1996). Unfortunately, the court's assumption that the jury could distinguish among subtly different uses of evidence is highly questionable when applied to the evidence in Germaine, which had high probative value when considered for its forbidden purpose. Clearly, evidence that defendant had engaged in the unlawful behavior at a somewhat earlier time was highly probative on the question of whether he had done the same thing during the period of time over which suit was brought. Interestingly, though the jury ultimately rendered a verdict for the Duke, its damage award was very low, prompting the court to issue a "severe reprimand . . . for giving so small and scandalous a fine." Germaine, 12 How. St. Tr. at 948. Eventually, Parliament granted the Duke a divorce. The Duchess married Germaine. See id.
79. Id. at 945. The court's determination to admit the evidence for one purpose while forbidding its consideration for another suggests that the court accepted the key assumption underlying the doctrine of limited admissibility: that the jury can be expected to differentiate among potential uses of evidence and that it will abide by an instruction to ignore the evidence for certain logically relevant purposes. For detailed consideration of the doctrine of limited admissibility, see DAVID P. LEONARD, THE NEW WIGMORE: A TREATISE ON EVIDENCE: SELECTED RULES OF LIMITED ADMISSIBILITY ch. 1 (1996). Unfortunately, the court's assumption that the jury could distinguish among subtly different uses of evidence is highly questionable when applied to the evidence in Germaine, which had high probative value when considered for its forbidden purpose. Clearly, evidence that defendant had engaged in the unlawful behavior at a somewhat earlier time was highly probative on the question of whether he had done the same thing during the period of time over which suit was brought. Interestingly, though the jury ultimately rendered a verdict for the Duke, its damage award was very low, prompting the court to issue a "severe reprimand . . . for giving so small and scandalous a fine." Germaine, 12 How. St. Tr. at 948. Eventually, Parliament granted the Duke a divorce. The Duchess married Germaine. See id.
80. There is a narrow way to read the theory behind the court's conclusion in Germaine. Because the prior misconduct occurred more than six years before suit was brought, that conduct clearly could not have been the subject of an action. The court therefore might simply have intended to assure that the statute of limitations would not be violated - that a line would be drawn between acts which could form the predicate for an adverse verdict and those that could not. The court might not have had in mind any "rule" admitting or excluding other acts evidence to show a character-based propensity to commit adultery or otherwise to prove a fact. Thus, it is not possible to know how the court would have ruled as to adulterous behavior committed by defendant within the six-year limitations period, but with a person other than the Duke's wife.
81. See An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 7 & 8 Will. 3, ch. 3 (1695-6) (Eng.).
82. See SIR MICHAEL FOSTER, CROWN LAW 244-46 (photo. reprint 1982) (London, W. Clarke & Sons 1762). The statute provided "[t]hat no[] evidence shall be[] admitted or given of any overt act that is not expresly [sic] laid in the indictment against any person or persons whatsoever." 7 & 8 Will. 3, ch. 3, § 8. Foster explained the statutory exclusionary rule primarily on the basis of surprise: "lest the prisoner should be surprised or confounded by a multiplicity and variety of facts which he is to answer upon the spot." FOSTER, supra, at 244-45.
83. See SIR MICHAEL FOSTER, CROWN LAW 244-46 (photo. reprint 1982) (London, W. Clarke & Sons 1762). The statute provided "[t]hat no[] evidence shall be[] admitted or given of any overt act that is not expresly [sic] laid in the indictment against any person or persons whatsoever." 7 & 8 Will. 3, ch. 3, § 8. Foster explained the statutory exclusionary rule primarily on the basis of surprise: "lest the prisoner should be surprised or confounded by a multiplicity and variety of facts which he is to answer upon the spot." FOSTER, supra, at 244-45.
84. FOSTER, supra note 39, at 246.
85. Cole was decided in 1810 at "Mich. term" "by all the Judges." SAMUEL MARCH PHILLIPPS, A TREATISE ON THE LAW OF EVIDENCE 70 n.b (London, J. Butterworth & Son 1814). It appears to have been decided in the Buckingham Summer Assizes.
86. Id.
87. Id.; see also 1 WILLIAM OLDWELL RUSSELL, RUSSELL ON CRIME 737 (J.W. Cecil Turner ed., 12th ed. 1964) (describing Cole as a prosecution for an "unnatural offence" and noting that the case held "that an admission by the prisoner that he had committed such an offence at another time, and with another person, and that his natural inclination was toward such practices, ought not to be received in evidence").
88. Id.; see also 1 WILLIAM OLDWELL RUSSELL, RUSSELL ON CRIME 737 (J.W. Cecil Turner ed., 12th ed. 1964) (describing Cole as a prosecution for an "unnatural offence" and noting that the case held "that an admission by the prisoner that he had committed such an offence at another time, and with another person, and that his natural inclination was toward such practices, ought not to be received in evidence").
89. PHILLIPPS, supra note 41, at 69.
90. Id. He elaborated: "[A]s the intent of evidence is to ascertain the truth of the several disputed facts or points in issue, either on one side or the other, no evidence ought to be admitted to any other point." Id. 46. 61 N.E. 286 (N.Y. 1901).
91. Id. at 293-94 (citation omitted).
92. Id. at 300. Quoting an earlier New York decision, the court underlined this point another time: "Two antagonistic methods for the judicial investigation of crime and the conduct of criminal trials have existed for many years. One of these methods favors this kind of evidence in order that the tribunal which is engaged in the trial of the accused may have the benefit of the light to be derived from a record of his whole past life, his tendencies, his nature, his associates, his practices, and in fine all the facts which go to make up the life of a human being. This is the method which is pursued in France, and it is claimed that entire justice is more apt to be done where such a course is pursued than where it is omitted. The common-law of England, however, has adopted another, and, so far as the party accused is concerned, a much more merciful, doctrine. By that law the criminal is to be presumed innocent until his guilt is made to appear beyond a reasonable doubt to a jury of 12 men. In order to prove his guilt it is not permitted to show his former character or to prove his guilt of other crimes, merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question." Id. at 294 (quoting People v. Shea, 41 N.E. 505, 511 (N. Y. 1895)).
93. See, e.g., Commonwealth v. Hardy, 2 Mass. (1 Tyng) 303, 317 (1807) (noting exception to general character bar where evidence offered by the criminal defendant, at least in capital cases). [The prosecutor] is not allowed to go into proof of the commission of any other offence than that charged, or of the character of the prisoner, unless the prisoner himself opens the way for the admission of that evidence by putting his character in issue; and, even in that case, the prosecutor cannot prove particular fact, but must content himself with evidence of general character. Walker v. Commonwealth, 9 Va. (1 Leigh) 574, 576 (1829).
94. 52 N.H. 401 (1872).
95. Id. at 406-07 (citations omitted). The court traced the origins of the rule to a peculiarity of English law: "There is reason to believe that this exception originated in a usurpation of legislative power by English judges, led by a merciful impulse to mitigate the cruelty of a bloody criminal code by throwing obstacles in the way of its operation." Id. at 407. The court was referring to the fact that the criminal code at one time contained about 160 capital offenses, and judges wished to mitigate the harshness of the code by limiting evidence damaging to criminal defendants. See id. This did not impress the court; believing these reasons for the rule in England had been ameliorated adequately by narrowing the crimes subject to the death penalty, it felt that the rule, if ever necessary, had ceased to be so: The conflict of laws having ceased, the temptation of courts to nullify the lower law which they are sworn to enforce has passed away. And however much reverence may remain for ancient innovations in behalf of human life under circumstances no longer existing, and however strong may be the inclination derived from that reverence and from habit to adhere to the practice of excluding evidence of human character furnished by experience, the extension of that practice to the rejection of experimental knowledge of the character of inanimate matter ought to stop. Id. at 408.
96. Recent legislation permitting character evidence in civil and criminal cases involving sexual assault and child molestation has altered the landscape. See infra notes 228-29 and accompanying text.
97. This assumes, of course, that the case is not a criminal prosecution and that the defendant has not chosen to defend in part on the basis of her good character. See, e.g., FED. R. EVID. 404(a)(1), 405(a).
98. For example, even the early writers recognized that other misconduct evidence is often virtually necessary to prove mental states such as knowledge. After stating the general prohibition on other misconduct evidence, the early treatise writer Phillipps added: "On an indictment for uttering a bank-note, knowing it to be forged, proof that the prisoner had passed other forged notes of the same kind, is evidence that he knew the note in question to be forged." PHILLIPPS, supra note 41, at 70.
99. See, e.g., SAMUEL MARCH PHILLIPPS, A TREATISE ON THE LAW OF EVIDENCE 126 (John A. Dunlap ed., New York, Gould, Banks & Gould, 2d ed. 1816) ("As the sole object and end of evidence is to ascertain the truth of the several disputed facts or points in issue on the one side or on the other, no evidence ought to be admitted to any other point."). Phillipps further stated that in treason cases, "no evidence is to be admitted of any overt act, that is not expressly laid in the indictment." Id. at 135.
100. 2 THOMAS STARKIE, A PRACTICAL TREATISE ON THE LAW OF EVIDENCE 382 (London, V. & R. Stevens & G.S. Norton 1824) (citations omitted).
101. 168 Eng. Rep. 589 (Old Bailey, London 1804). The case is also cited as Rex v. Wylie, 127 Eng. Rep. 393 (Old Bailey, London 1804).
102. See Whiley, 168 Eng. Rep. at 589.
103. Id.
104. Id.
105. (1801) (unreported).
106. Whiley, 168 Eng. Rep. at 590.
107. See Tattershall (1801) (unreported).
108. Whiley, 168 Eng. Rep. at 590.
109. Ellenborough wrote: True it is, that the more detached the previous utterings are, in point of time, the less relation they will bear to the particular uttering stated in the indictment; and when they are so distant, the only question that can be made is, whether they are sufficient to warrant the Jury in making any inference from them as to the guilty knowledge of the prisoner; but it would not render the evidence inadmissible. - Circumstances of this kind may produce such strong evidence as to leave no doubt as to the prisoner's knowledge that these notes were forged. I am therefore of opinion . . . that it is competent for the Court to receive evidence of other transactions, though they amount to distinct offences, and of the demeanor of the prisoner on other occasions, from which it may be fairly inferred that he was conscious of his guilt while he was doing the act charged upon him in the indictment; and if this species of evidence do [sic] not warrant such an inference, it will be laid out of the case. Id.
110. Id.
111. See, e.g., FED. R. EVID. 404(b) ("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 . . . ."). Thirty-one states use versions of this rule. See JOSEPH & SALTZBURG, supra note 21, § 14.4.
112. The character rule does not bar all propensity inferences, but only those based on a person's character. Other inferences about a person's conduct that involve propensity do not fall within the prohibition. A simple example is habit evidence. If the factual question is whether a person locked her car door after parking the car on a particular occasion, evidence that she habitually did so, and thus did so on that occasion, would involve a propensity inference arising from her habit, not her character. See FED. R. EVID. 406 (governing admissibility of habit evidence). In addition, evidence offered to prove conduct under the "other crimes, wrongs, or acts" rule often involves the use of propensity inferences. See Kuhns, supra note 15, passim.
113. In fact, the rule admitting evidence of other wrongdoing for noncharacter purposes, especially to demonstrate guilty knowledge, probably predated the firm establishment of a rule excluding such evidence when offered to show a character-based disposition to commit certain kinds of misconduct.
114. Peter Tillers, the current reviser of this part of Wigmore's treatise, doubts that the courts have created defensible distinctions between the character and noncharacter use of other misconduct evidence: In our discussions of detailed aspects of the character evidence rule, we survey various efforts to make the necessary distinctions in terms of relevancy and reliability rationales, but on the whole we find such explanations inadequate. In our own view, the windings and twistings of the character evidence rule and its various exceptions are largely without rational explanation because those windings and twistings reflect a half-hearted and unprincipled compromise between an interest in truthseeking and a belief that we should not judge people or their acts by their character. 1A WIGMORE, supra note 13, § 54.1, at 1156.
115. See, e.g., Farrer v. State, 2 Ohio St. 54 (1853). Defendant was charged with the murder of a child named James Forrest. Despite her apparently limited mental ability, defendant was employed as a nurse in the victim's home. At that home, it was "not disputed, that she poisoned every member of the family, and that the mother and two children died of that poisoning." Id. at 61. The trial court admitted evidence of these deaths, as well as of a number of other people who had previously died in different homes in which defendant worked. See id. at 64. James Forrest was the last to die at her current home. A postmortem examination revealed the presence of arsenic. There was evidence that defendant had access to arsenic. See id. at 67. Defendant did not object to evidence of the other deaths in the Forrest home, which apparently were admitted to prove defendant had committed the crime at issue. However, defendant did object to admission of evidence of the poisoning of a Mrs. Green, which had occurred months before in another home in which defendant worked. See id. at 71. The Ohio Supreme Court agreed with defendant. In making this determination, Justice Corwin considered possible permissible purposes of the evidence, but rejected each on the facts of the case: There is no necessity to show, that Nancy poisoned Mrs. Green, in order to prove that she had poison wherewith she might have poisoned the Forrest family . . . . Nor can it be successfully argued, that this proof of the poisoning in August, was necessary to prove that in November the prisoner knew the nature and uses of arsenic. The intent of the prisoner was not to be so established. In the case of passing counterfeit money, evidence of other acts of passing is admitted, because many persons occasionally take counterfeit money, and attempt to pass it, while ignorant of its spurious character. But persons do not buy arsenic without knowing its uses. Id. at 71-72. Corwin concluded that the evidence should have been excluded because "[i]t could not perform any other office than that of needlessly exciting prejudice against the accused." Id. at 72. A concurring judge also emphasized the lack of need for the evidence and the danger of unfair prejudice. See id. at 73-74 (Thurman, J., concurring). Farrer is somewhat unusual in its lengthy discussion of the issue, but its essential approach is not.
116. See, e.g., Gassenheimer v. State, 52 Ala. 313, 318-19 (1875) (stating the principle that evidence must be confined to the points in issue, and that in criminal cases, evidence of conduct that would constitute another offense should not be admitted, acknowledging, however, the existence of what the court called "exceptions" to this rule, but ultimately finding none applicable to the present case); People v. Seaman, 65 N.W. 203, 206 (Mich. 1895) (reviewing American and English authority supporting what it called "exceptions" to the "general rule . . . that evidence shall be confined to the issue, and that on a trial for felony the prosecution will not generally be permitted to give evidence tending to prove the defendant guilty of another distinct and independent felony"); State v. Raymond, 21 A. 328, 330 (N.J. 1891) (employing "exceptions" terminology); People v. Molineux, 61 N.E. 286, 294 (N.Y. 1901) (employing "exceptions" terminology).
117. See, e.g., People v. Rando, 3 Park. Crim. 335 (N.Y. Sup. Ct. 1857). Defendant was convicted of receiving certain riding equipment (a saddle, bridle, and bits) knowing it was stolen. At trial, over objection, the prosecution was permitted to prove that at the time of his arrest, defendant was in possession of other stolen goods owned by persons other than the victim from whom the items at issue had been stolen. See id. at 335. The trial court appears to have admitted the evidence as proof of scienter - defendant's knowledge that the goods he possessed were stolen. On appeal, defendant apparently conceded that had the other stolen property been that of the same victim, it would have been admissible. The prosecutor responded that none of the authorities placed such a limit on the admissibility of this kind of evidence. See id. at 338 (argument of A. Oakey Hall, for the people). In his argument, the prosecutor offered the reason for the rule allowing evidence of other goods in defendant's possession: The reason of the rule is this: Receiving stolen goods is no crime of itself. There may be innocent purchasers, and very often there are. It is the knowledge they are stolen. If a man is in the practice of passing counterfeit money or of buying stolen goods, evidence of this rebuts any presumption of innocent possession or purchase, and raises affirmative presumption of guilty knowledge or scienter. Id. (argument of A. Oakey Hall, for the people). The court declined to adopt the limitation urged by defendant. In a very brief opinion citing no authority, the court stated simply that "[w]here a party is indicted for the crime of knowingly receiving stolen goods, it is competent to the prosecution to give in evidence a series of other acts of the like character, to show the knowledge or scienter of the accused, or to rebut any presumption of innocent mistake." Id. at 339; see also State v. Ward, 49 Conn. 429, 439 (1881) (similar); Shriedley v. State, 23 Ohio St. 130 (1872) (similar).
118. The court in Commonwealth v. Charles, 14 Phila. Rep. 663 (Court of Oyer and Terminer of Luzerne County 1871), for example, distinguished typical larceny cases from prosecutions for receiving stolen goods and certain others: Larceny is not one of the class of offences, where the usual rules of evidence are of necessity relaxed in order to reach the motives, intention and knowledge of the accused. The necessity for this species of evidence arises most frequently in cases of conspiracy, of uttering forged instruments, counterfeit notes and coin, and of receiving stolen goods. Although admitted in other cases, where the intent becomes essential in determining guilt and its degree, yet in the cases above mentioned, the act which is the subject of inquiry is almost always equivocal, where malus animus cannot, as in the ordinary crimes of violence, be presumed, and in most cases can only be determined by evidence of the prisoner's conduct on other occasions. Id. at 664.
119. Among the earliest was State v. Van Houten, 3 N.J.L. 248, 273 (Sup. Ct. 1810). Defendant was charged with knowingly uttering a counterfeit ten-dollar bill in payment for goods at a Trenton store. To prove defendant's knowledge that the bill was counterfeit, the prosecutor was permitted to offer evidence that on the same evening, defendant had passed other counterfeit bills at other stores in Trenton, and that he had done the same at other places that day. See id. at 249. The prosecutor argued that it was necessary to admit such evidence because knowledge was in the mind of defendant, and could not be proven other than circumstantially. See id. By a two-to-one vote, the court held that admission was proper, "not . . . to prove the fact that [defendant] passed the bill, or that the bill itself was counterfeit, but the knowledge that he had of its being counterfeit at the time of passing it; and the fraudulent and evil intent with which he did it." Id. at 250. In other cases, defendant's possession of other similar counterfeit items was admitted. See, e.g., Stalker v. State, 9 Conn. 341 (1832) (finding in prosecution for passing a counterfeit half-dollar, that evidence of defendant's possession of other counterfeit half-dollars was admissible to prove his knowledge that the coin at issue was counterfeit). Other cases allowed admission of evidence that defendant possessed counterfeiting apparatus. See, e.g., State v. Antonio, 5 S.C.L. (3 Brev.) 562 (1816) (finding in prosecution for counterfeiting coins, evidence that defendant was found in possession of coining instruments admissible to prove defendant's criminal intent, stressing the need for the evidence).
120. People v. Smith, 56 N.E. 1001 (N.Y. 1900), is a particularly telling example. Defendant and his father were charged with setting a fire that destroyed eleven buildings, seven of which were owned by defendant's mother. These seven were also insured. The prosecution offered evidence that just before the fire, defendant, his father, and his mother removed most of the contents of the buildings, and that they later falsely claimed these items were lost in the fire. The prosecutor also stated in his opening statement that he would offer evidence that before the fire in issue, other buildings in which defendant had an interest were destroyed by fire. The trial court allowed the evidence. See id. at 1003. On appeal, the court held that the court should have excluded all evidence of other fires. The court wrote: This case is unlike the cases of larceny by trick or device, obtaining money under false pretenses, receiving stolen property knowing it to have been stolen, passing counterfeit money knowing it to be such, where the intent is determinative of the crime, but often remains in doubt when but the single transaction charged in the indictment is unfolded. An honest man may, by chance, be confronted by all the accusing circumstances and yet be innocent. If, however, it should appear that a person thus confronted, and protesting his innocence, had been involved in the like circumstances upon former occasions, confidence in his honesty would probably be replaced by a conviction of his rascality. Many cases illustrate this view, and show when such evidence is admissible. They have no application here. Id. at 1003-04 (citations omitted). Clearly, the court was motivated by the lack of need for the evidence in this type of case.
121. See, e.g., State v. Lightfoot, 78 N.W. 41, 43 (Iowa 1899) (admitting, in criminal trial for malicious poisoning of a horse with strychnine, evidence that strychnine was found at the same time in feed boxes of other horses owned by the same person, and that all the horses died at about the same time to prove "the premeditated and malicious character of the act which caused the death of [the horse]"). Two early English cases also illustrate this use of other misconduct evidence. In Rex v. Mogg, 172 Eng. Rep. 741 (Oxford Summer Circuit, Worcester Assizes 1830), defendant was charged with administering sulphuric acid to eight horses with intent to kill them. Defendant did not deny administering the substance, but claimed he did so to make the horses' coats shine rather than to injure them. Though defendant objected to testimony by a prosecution witness that defendant had frequently done the same thing, the court allowed the evidence, stating that "other acts of administering may go to shew whether it was done with the intent charged in the indictment." Id. at 742. Similarly, in Regina v. Garner, 176 Eng. Rep. 594 (Midland Circuit, Lincoln 1864), Mr. Garner and his wife were charged with the poisoning murder of Jemima Garner, Mr. Garner's mother. Intent was sharply disputed. There was evidence of quarrels between Mrs. Garner and Jemima Garner. Mr. Garner was in the business of selling arsenic for agricultural purposes, and also sold milk. At one point, Mrs. Garner expressed jealousy of a woman named Shepherd. Not long after, Shepherd's children became violently ill after tasting some milk sent by Mrs. Garner to Shepherd. Additional milk delivered to another person that day also apparently caused illness, and the following day, several people in the Garner home, including Jemima Garner, also became ill after eating rice pudding made with the milk. Mrs. Garner attended to her mother-in-law during her illness and prepared all her meals. The prosecution also offered evidence that after Jemima Garner's death, a horse owned by a person Mrs. Garner allegedly disliked, as well as two other horses, were poisoned while in the defendants' stables. Finally, evidence was produced to show that Mr. Garner's first wife had died of arsenic poisoning. All this evidence was offered "for the purpose of showing that Jemima Garner died from poison wilfully administered to her by the prisoners, and not taken by accident." Id. at 595. The court admitted the evidence. (Defendants did not object to the evidence, and the report of the case does not contain the court's rationale for admitting it.) Garner was criticized by the court in Regina v. Hall [1887] 5 N.Z.L.R. 93, on the basis that the evidence in question was "apparently" used to strengthen evidence that it was the defendant who administered the poison. The court considered this purpose improper, stating, "[t]his case . . . [was] an extraordinary one; and its result . . . [being] in every way unsatisfactory." Id. at 106.
122. See, e.g., Knights v. State, 78 N.W. 508, 510 (Neb. 1899) (admitting, in prosecution for burning a building containing some of his own goods, evidence that on the same night, defendant set other fires in adjacent buildings, "not for the purpose of showing the commission of distinct crimes, but to establish a criminal design on the part of defendant . . . and satisfy the jury that the act was intentional, and not an accident").
123. Early American courts were especially lenient in admitting evidence of the sexual conduct of the victims of rape, sexual assault, adultery, and other actions involving sexual misconduct. See SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE 61 (Boston, Little, Brown & Co. 1842) (stating that such evidence is admissible in prosecutions for rape or assault with intent to commit rape, where the action "is considered as involving, not only the general character of the prosecutrix for chastity, but the particular fact of her previous criminal connexion with the prisoner; though not with other persons"). Even in types of cases in which most courts admitted other misconduct evidence, a few courts apparently did so more liberally than others. See, for example, State v. Jacob, 8 S.E. 698 (S.C. 1889), where, in a prosecution for receiving stolen goods, the court admitted evidence that at the same time defendant received the goods charged in the indictment, he also received other goods stolen from the same owner. Absent evidence that defendant knew these other goods were stolen, the propriety of admission under general principles recognized by most courts seems questionable.
124. As indicated previously, the current reviser of Wigmore's treatment of character evidence finds that the alleged distinction between character and noncharacter use of the evidence is often intellectually incoherent. See supra note 70. For a probing analysis of the reasoning involved in admission of evidence pursuant to the other crimes, wrongs, or acts rule, and how that reasoning often intersects the forbidden character reasoning, see Kuhns, supra note 15.
125. This is certainly true after Huddleston v. United States, 485 U.S. 681 (1988), in which the Supreme Court stated that other crimes evidence is admissible as long as there is evidence sufficient to support a finding that the other crime occurred, that the evidence is relevant to an issue in the case, that the court issues proper limiting instructions, and that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. See id. at 690-92. It will be the unusual act that does not satisfy this lenient test.
126. Describing characteristics of "evolutionary functionalism," which he considered to be the dominant vision of American legal historicism, Robert Gordon writes of the assumption that "[l]egal systems should be described and explained in terms of their functional responsiveness to social needs." Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 63 (1984). He characterized that assumption as follows: The general functionalist method is to construct (or, as is rather more common, to assume without much discussion) a typology of stages of social development and then to show how legal forms and institutions have satisfied, or failed to satisfy, the functional requirements of each stage. Obviously, an enormous gap in sophistication and conceptual power separates the best and worst examples of this method. At its best, as in Weber's work, complex bundles of rules are tied through explicit theorizing to elaborate accounts of social development. At its comically vulgar worst, the method produces wholly speculative functional rationales for legal rules in underlying social changes - vacuously described rationales such as "the evolution of the right of privacy was a response to the increasing complexity and interdependence of modern society." Id. at 64 ([no source provided for quoted passage]). Hopefully, the tentative links drawn in the discussion herein will not be among the "comically vulgar worst" of examples. It is, of course, not at all likely that the economic arrangements of Western capitalism were a necessary precondition for the growth of the current legal regime. Max Weber, for one, believed the truth to be just the opposite: "Economic conditions . . . have . . . everywhere played an important role, but they have nowhere been decisive alone and by themselves. . . . To those who had interests in the commodity market, the rationalization and systematization of the law in general and . . . the increasing calculability of the functioning of the legal process in particular, constituted one of the most important conditions for the existence . . . of capitalistic enterprise, which cannot do without legal security." HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION 546-47 (1983) (first two omissions added; last three omissions in original) (quoting MAX WEBER, MAX WEBER ON LAW IN ECONOMY AND SOCIETY 304-05 (Max Rheinstein ed., 1954)).
127. Describing characteristics of "evolutionary functionalism," which he considered to be the dominant vision of American legal historicism, Robert Gordon writes of the assumption that "[l]egal systems should be described and explained in terms of their functional responsiveness to social needs." Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 63 (1984). He characterized that assumption as follows: The general functionalist method is to construct (or, as is rather more common, to assume without much discussion) a typology of stages of social development and then to show how legal forms and institutions have satisfied, or failed to satisfy, the functional requirements of each stage. Obviously, an enormous gap in sophistication and conceptual power separates the best and worst examples of this method. At its best, as in Weber's work, complex bundles of rules are tied through explicit theorizing to elaborate accounts of social development. At its comically vulgar worst, the method produces wholly speculative functional rationales for legal rules in underlying social changes - vacuously described rationales such as "the evolution of the right of privacy was a response to the increasing complexity and interdependence of modern society." Id. at 64 ([no source provided for quoted passage]). Hopefully, the tentative links drawn in the discussion herein will not be among the "comically vulgar worst" of examples. It is, of course, not at all likely that the economic arrangements of Western capitalism were a necessary precondition for the growth of the current legal regime. Max Weber, for one, believed the truth to be just the opposite: "Economic conditions . . . have . . . everywhere played an important role, but they have nowhere been decisive alone and by themselves. . . . To those who had interests in the commodity market, the rationalization and systematization of the law in general and . . . the increasing calculability of the functioning of the legal process in particular, constituted one of the most important conditions for the existence . . . of capitalistic enterprise, which cannot do without legal security." HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION 546-47 (1983) (first two omissions added; last three omissions in original) (quoting MAX WEBER, MAX WEBER ON LAW IN ECONOMY AND SOCIETY 304-05 (Max Rheinstein ed., 1954)).
128. Describing characteristics of "evolutionary functionalism," which he considered to be the dominant vision of American legal historicism, Robert Gordon writes of the assumption that "[l]egal systems should be described and explained in terms of their functional responsiveness to social needs." Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 63 (1984). He characterized that assumption as follows: The general functionalist method is to construct (or, as is rather more common, to assume without much discussion) a typology of stages of social development and then to show how legal forms and institutions have satisfied, or failed to satisfy, the functional requirements of each stage. Obviously, an enormous gap in sophistication and conceptual power separates the best and worst examples of this method. At its best, as in Weber's work, complex bundles of rules are tied through explicit theorizing to elaborate accounts of social development. At its comically vulgar worst, the method produces wholly speculative functional rationales for legal rules in underlying social changes - vacuously described rationales such as "the evolution of the right of privacy was a response to the increasing complexity and interdependence of modern society." Id. at 64 ([no source provided for quoted passage]). Hopefully, the tentative links drawn in the discussion herein will not be among the "comically vulgar worst" of examples. It is, of course, not at all likely that the economic arrangements of Western capitalism were a necessary precondition for the growth of the current legal regime. Max Weber, for one, believed the truth to be just the opposite: "Economic conditions . . . have . . . everywhere played an important role, but they have nowhere been decisive alone and by themselves. . . . To those who had interests in the commodity market, the rationalization and systematization of the law in general and . . . the increasing calculability of the functioning of the legal process in particular, constituted one of the most important conditions for the existence . . . of capitalistic enterprise, which cannot do without legal security." HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION 546-47 (1983) (first two omissions added; last three omissions in original) (quoting MAX WEBER, MAX WEBER ON LAW IN ECONOMY AND SOCIETY 304-05 (Max Rheinstein ed., 1954)).
129. See BERMAN, supra note 82, at 538-40. Berman also criticizes conventional legal historiography, which divides Western history into distinct periods including the Middle Ages and the Modern Age, and focuses on the Renaissance and Reformation of the fifteenth and sixteenth centuries. In his view, periodization of history entirely misses an eleventh and twelfth century Renaissance and Reformation which "constituted the first great turning point in the history of the West, and . . . [were] the source not only of the Western legal tradition but of other major aspects of Western social thought and social action as well." Id. at 538.
130. Perhaps nowhere is this more true than in reconstructing the development
131. Perhaps nowhere is this more true than in reconstructing the development of tort liability at common law. For the last century or so, scholars have attempted to piece together the origins of tort law and its evolution to its present form. Much of this analysis has been built upon the small handful of cases that have survived from the fourteenth through the seventeenth centuries. See, e.g., OLIVER WENDELL HOLMES, THE COMMON LAW 63-103 (Mark DeWolfe Howe ed., 1963) (1881); FREDERICK W. MAITLAND, THE FORMS OF ACTION AT COMMON LAW (1936); Morris S. Arnold, Accident, Mistake, and Rules of Liability in the Fourteenth-Century Law of Torts, 128 U. PA. L. REV. 361 (1979); see also sources cited infra note 171.
132. Perhaps nowhere is this more true than in reconstructing the development of tort liability at common law. For the last century or so, scholars have attempted to piece together the origins of tort law and its evolution to its present form. Much of this analysis has been built upon the small handful of cases that have survived from the fourteenth through the seventeenth centuries. See, e.g., OLIVER WENDELL HOLMES, THE COMMON LAW 63-103 (Mark DeWolfe Howe ed., 1963) (1881); FREDERICK W. MAITLAND, THE FORMS OF ACTION AT COMMON LAW (1936); Morris S. Arnold, Accident, Mistake, and Rules of Liability in the Fourteenth-Century Law of Torts, 128 U. PA. L. REV. 361 (1979); see also sources cited infra note 171.
133. 1 WIGMORE, supra note 17, § 194, at 647; see id. § 194, at 647 n.2 (noting the French practice); see also THAYER, supra note 17, at 525 (noting that such evidence is "freely used . . . in other than English-speaking countries").
134. 1 WIGMORE, supra note 17, § 194, at 647; see id. § 194, at 647 n.2 (noting the French practice); see also THAYER, supra note 17, at 525 (noting that such evidence is "freely used . . . in other than English-speaking countries").
135. Slough & Knightly, supra note 1, at 325.
136. F.L. Stow, Evidence of Similar Facts, 38 L.Q. REV. 63, 63 (1922).
137. 3 JEREMY BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 195-96 (London, Hunt & Clarke 1827).
138. The validity of that belief has been challenged to some extent. See, e.g., Leonard, supra note 12, at 25-31 (generally arguing that much character evidence does not satisfy the test of logical relevancy); Mendez, supra note 12, at 1041-60 (same). But see Davies, supra note 12, at 517-18 (concluding that under some circumstances, it is possible to draw reliable inferences of action in conformity with character); Taslitz, supra note 12, at 32-34, 64-86 (same).
139. The validity of that belief has been challenged to some extent. See, e.g., Leonard, supra note 12, at 25-31 (generally arguing that much character evidence does not satisfy the test of logical relevancy); Mendez, supra note 12, at 1041-60 (same). But see Davies, supra note 12, at 517-18 (concluding that under some circumstances, it is possible to draw reliable inferences of action in conformity with character); Taslitz, supra note 12, at 32-34, 64-86 (same).
140. The validity of that belief has been challenged to some extent. See, e.g., Leonard, supra note 12, at 25-31 (generally arguing that much character evidence does not satisfy the test of logical relevancy); Mendez, supra note 12, at 1041-60 (same). But see Davies, supra note 12, at 517-18 (concluding that under some circumstances, it is possible to draw reliable inferences of action in conformity with character); Taslitz, supra note 12, at 32-34, 64-86 (same).
141. The validity of that belief has been challenged to some extent. See, e.g., Leonard, supra note 12, at 25-31 (generally arguing that much character evidence does not satisfy the test of logical relevancy); Mendez, supra note 12, at 1041-60 (same). But see Davies, supra note 12, at 517-18 (concluding that under some circumstances, it is possible to draw reliable inferences of action in conformity with character); Taslitz, supra note 12, at 32-34, 64-86 (same).
142. Under modern principles, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401.
143. 1 WIGMORE, supra note 17, § 55, at 450 (emphasis in original).
144. See JOHN JAY MCKELVEY, HANDBOOK OF THE LAW OF EVIDENCE § 108, at 149 (St. Paul, West Pub'g Co. 1898) ("Where the question is whether X. did or did not do a certain act, his character, if proved, might throw a strong light upon the issue, and justify an inference as to the act charged."); THAYER, supra note 17, at 525 ("Undoubtedly, as a mere matter of reason, it often affords a good basis of inference . . . ."). [Jurors] will very naturally believe that a person is guilty of the crime with which he is charged if it is proved . . . that he has committed a similar offense, or any offense of an equally heinous character. And it can not be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will commit one crime is very liable subsequently to commit another of the same description. UNDERHILL, supra note 17, § 180, at 310; see Kuhns, supra note 15, at 777 ("Proof that a criminal defendant has committed specific bad acts other than those included in a current charge may be relevant to prove the defendant's guilt."); F.R. Lacy, Admissibility of Evidence of Crimes Not Charged in the Indictment, 31 OR. L. REV. 267, 268-69 ( 1952) ("[P]erhaps in the greater number of cases in which 'other crimes' evidence is offered there is some slight relevance."); Robert G. Lawson, Credibility and Character: A Different Look at an Interminable Problem, 50 NOTRE DAME L. REV. 758, 760 (1975) (voicing the same conclusion with respect to testimonial credibility); Stone, England, supra note 26, at 956 ("By definition . . . , facts similar in the narrow sense to the main fact in issue are always relevant thereto . . . .") (emphasis in original); Evidence-Other Crimes, 29 MICH. L. REV. 473, 473 (1931) [hereinafter Other Crimes] ("Evidence of crimes of any sort, or even of unsuccessful attempts or uncompleted plans, is relevant enough, since it tends to show a criminal tendency and an habitual disregard for accepted standards of conduct.").
145. See JOHN JAY MCKELVEY, HANDBOOK OF THE LAW OF EVIDENCE § 108, at 149 (St. Paul, West Pub'g Co. 1898) ("Where the question is whether X. did or did not do a certain act, his character, if proved, might throw a strong light upon the issue, and justify an inference as to the act charged."); THAYER, supra note 17, at 525 ("Undoubtedly, as a mere matter of reason, it often affords a good basis of inference . . . ."). [Jurors] will very naturally believe that a person is guilty of the crime with which he is charged if it is proved . . . that he has committed a similar offense, or any offense of an equally heinous character. And it can not be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will commit one crime is very liable subsequently to commit another of the same description. UNDERHILL, supra note 17, § 180, at 310; see Kuhns, supra note 15, at 777 ("Proof that a criminal defendant has committed specific bad acts other than those included in a current charge may be relevant to prove the defendant's guilt."); F.R. Lacy, Admissibility of Evidence of Crimes Not Charged in the Indictment, 31 OR. L. REV. 267, 268-69 ( 1952) ("[P]erhaps in the greater number of cases in which 'other crimes' evidence is offered there is some slight relevance."); Robert G. Lawson, Credibility and Character: A Different Look at an Interminable Problem, 50 NOTRE DAME L. REV. 758, 760 (1975) (voicing the same conclusion with respect to testimonial credibility); Stone, England, supra note 26, at 956 ("By definition . . . , facts similar in the narrow sense to the main fact in issue are always relevant thereto . . . .") (emphasis in original); Evidence-Other Crimes, 29 MICH. L. REV. 473, 473 (1931) [hereinafter Other Crimes] ("Evidence of crimes of any sort, or even of unsuccessful attempts or uncompleted plans, is relevant enough, since it tends to show a criminal tendency and an habitual disregard for accepted standards of conduct.").
146. See JOHN JAY MCKELVEY, HANDBOOK OF THE LAW OF EVIDENCE § 108, at 149 (St. Paul, West Pub'g Co. 1898) ("Where the question is whether X. did or did not do a certain act, his character, if proved, might throw a strong light upon the issue, and justify an inference as to the act charged."); THAYER, supra note 17, at 525 ("Undoubtedly, as a mere matter of reason, it often affords a good basis of inference . . . ."). [Jurors] will very naturally believe that a person is guilty of the crime with which he is charged if it is proved . . . that he has committed a similar offense, or any offense of an equally heinous character. And it can not be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will commit one crime is very liable subsequently to commit another of the same description. UNDERHILL, supra note 17, § 180, at 310; see Kuhns, supra note 15, at 777 ("Proof that a criminal defendant has committed specific bad acts other than those included in a current charge may be relevant to prove the defendant's guilt."); F.R. Lacy, Admissibility of Evidence of Crimes Not Charged in the Indictment, 31 OR. L. REV. 267, 268-69 ( 1952) ("[P]erhaps in the greater number of cases in which 'other crimes' evidence is offered there is some slight relevance."); Robert G. Lawson, Credibility and Character: A Different Look at an Interminable Problem, 50 NOTRE DAME L. REV. 758, 760 (1975) (voicing the same conclusion with respect to testimonial credibility); Stone, England, supra note 26, at 956 ("By definition . . . , facts similar in the narrow sense to the main fact in issue are always relevant thereto . . . .") (emphasis in original); Evidence-Other Crimes, 29 MICH. L. REV. 473, 473 (1931) [hereinafter Other Crimes] ("Evidence of crimes of any sort, or even of unsuccessful attempts or uncompleted plans, is relevant enough, since it tends to show a criminal tendency and an habitual disregard for accepted standards of conduct.").
147. See JOHN JAY MCKELVEY, HANDBOOK OF THE LAW OF EVIDENCE § 108, at 149 (St. Paul, West Pub'g Co. 1898) ("Where the question is whether X. did or did not do a certain act, his character, if proved, might throw a strong light upon the issue, and justify an inference as to the act charged."); THAYER, supra note 17, at 525 ("Undoubtedly, as a mere matter of reason, it often affords a good basis of inference . . . ."). [Jurors] will very naturally believe that a person is guilty of the crime with which he is charged if it is proved . . . that he has committed a similar offense, or any offense of an equally heinous character. And it can not be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will commit one crime is very liable subsequently to commit another of the same description. UNDERHILL, supra note 17, § 180, at 310; see Kuhns, supra note 15, at 777 ("Proof that a criminal defendant has committed specific bad acts other than those included in a current charge may be relevant to prove the defendant's guilt."); F.R. Lacy, Admissibility of Evidence of Crimes Not Charged in the Indictment, 31 OR. L. REV. 267, 268-69 ( 1952) ("[P]erhaps in the greater number of cases in which 'other crimes' evidence is offered there is some slight relevance."); Robert G. Lawson, Credibility and Character: A Different Look at an Interminable Problem, 50 NOTRE DAME L. REV. 758, 760 (1975) (voicing the same conclusion with respect to testimonial credibility); Stone, England, supra note 26, at 956 ("By definition . . . , facts similar in the narrow sense to the main fact in issue are always relevant thereto . . . .") (emphasis in original); Evidence-Other Crimes, 29 MICH. L. REV. 473, 473 (1931) [hereinafter Other Crimes] ("Evidence of crimes of any sort, or even of unsuccessful attempts or uncompleted plans, is relevant enough, since it tends to show a criminal tendency and an habitual disregard for accepted standards of conduct.").
148. See JOHN JAY MCKELVEY, HANDBOOK OF THE LAW OF EVIDENCE § 108, at 149 (St. Paul, West Pub'g Co. 1898) ("Where the question is whether X. did or did not do a certain act, his character, if proved, might throw a strong light upon the issue, and justify an inference as to the act charged."); THAYER, supra note 17, at 525 ("Undoubtedly, as a mere matter of reason, it often affords a good basis of inference . . . ."). [Jurors] will very naturally believe that a person is guilty of the crime with which he is charged if it is proved . . . that he has committed a similar offense, or any offense of an equally heinous character. And it can not be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will commit one crime is very liable subsequently to commit another of the same description. UNDERHILL, supra note 17, § 180, at 310; see Kuhns, supra note 15, at 777 ("Proof that a criminal defendant has committed specific bad acts other than those included in a current charge may be relevant to prove the defendant's guilt."); F.R. Lacy, Admissibility of Evidence of Crimes Not Charged in the Indictment, 31 OR. L. REV. 267, 268-69 ( 1952) ("[P]erhaps in the greater number of cases in which 'other crimes' evidence is offered there is some slight relevance."); Robert G. Lawson, Credibility and Character: A Different Look at an Interminable Problem, 50 NOTRE DAME L. REV. 758, 760 (1975) (voicing the same conclusion with respect to testimonial credibility); Stone, England, supra note 26, at 956 ("By definition . . . , facts similar in the narrow sense to the main fact in issue are always relevant thereto . . . .") (emphasis in original); Evidence-Other Crimes, 29 MICH. L. REV. 473, 473 (1931) [hereinafter Other Crimes] ("Evidence of crimes of any sort, or even of unsuccessful attempts or uncompleted plans, is relevant enough, since it tends to show a criminal tendency and an habitual disregard for accepted standards of conduct.").
149. See JOHN JAY MCKELVEY, HANDBOOK OF THE LAW OF EVIDENCE § 108, at 149 (St. Paul, West Pub'g Co. 1898) ("Where the question is whether X. did or did not do a certain act, his character, if proved, might throw a strong light upon the issue, and justify an inference as to the act charged."); THAYER, supra note 17, at 525 ("Undoubtedly, as a mere matter of reason, it often affords a good basis of inference . . . ."). [Jurors] will very naturally believe that a person is guilty of the crime with which he is charged if it is proved . . . that he has committed a similar offense, or any offense of an equally heinous character. And it can not be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will commit one crime is very liable subsequently to commit another of the same description. UNDERHILL, supra note 17, § 180, at 310; see Kuhns, supra note 15, at 777 ("Proof that a criminal defendant has committed specific bad acts other than those included in a current charge may be relevant to prove the defendant's guilt."); F.R. Lacy, Admissibility of Evidence of Crimes Not Charged in the Indictment, 31 OR. L. REV. 267, 268-69 ( 1952) ("[P]erhaps in the greater number of cases in which 'other crimes' evidence is offered there is some slight relevance."); Robert G. Lawson, Credibility and Character: A Different Look at an Interminable Problem, 50 NOTRE DAME L. REV. 758, 760 (1975) (voicing the same conclusion with respect to testimonial credibility); Stone, England, supra note 26, at 956 ("By definition . . . , facts similar in the narrow sense to the main fact in issue are always relevant thereto . . . .") (emphasis in original); Evidence-Other Crimes, 29 MICH. L. REV. 473, 473 (1931) [hereinafter Other Crimes] ("Evidence of crimes of any sort, or even of unsuccessful attempts or uncompleted plans, is relevant enough, since it tends to show a criminal tendency and an habitual disregard for accepted standards of conduct.").
150. See JOHN JAY MCKELVEY, HANDBOOK OF THE LAW OF EVIDENCE § 108, at 149 (St. Paul, West Pub'g Co. 1898) ("Where the question is whether X. did or did not do a certain act, his character, if proved, might throw a strong light upon the issue, and justify an inference as to the act charged."); THAYER, supra note 17, at 525 ("Undoubtedly, as a mere matter of reason, it often affords a good basis of inference . . . ."). [Jurors] will very naturally believe that a person is guilty of the crime with which he is charged if it is proved . . . that he has committed a similar offense, or any offense of an equally heinous character. And it can not be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will commit one crime is very liable subsequently to commit another of the same description. UNDERHILL, supra note 17, § 180, at 310; see Kuhns, supra note 15, at 777 ("Proof that a criminal defendant has committed specific bad acts other than those included in a current charge may be relevant to prove the defendant's guilt."); F.R. Lacy, Admissibility of Evidence of Crimes Not Charged in the Indictment, 31 OR. L. REV. 267, 268-69 ( 1952) ("[P]erhaps in the greater number of cases in which 'other crimes' evidence is offered there is some slight relevance."); Robert G. Lawson, Credibility and Character: A Different Look at an Interminable Problem, 50 NOTRE DAME L. REV. 758, 760 (1975) (voicing the same conclusion with respect to testimonial credibility); Stone, England, supra note 26, at 956 ("By definition . . . , facts similar in the narrow sense to the main fact in issue are always relevant thereto . . . .") (emphasis in original); Evidence-Other Crimes, 29 MICH. L. REV. 473, 473 (1931) [hereinafter Other Crimes] ("Evidence of crimes of any sort, or even of unsuccessful attempts or uncompleted plans, is relevant enough, since it tends to show a criminal tendency and an habitual disregard for accepted standards of conduct.").
151. See JOHN JAY MCKELVEY, HANDBOOK OF THE LAW OF EVIDENCE § 108, at 149 (St. Paul, West Pub'g Co. 1898) ("Where the question is whether X. did or did not do a certain act, his character, if proved, might throw a strong light upon the issue, and justify an inference as to the act charged."); THAYER, supra note 17, at 525 ("Undoubtedly, as a mere matter of reason, it often affords a good basis of inference . . . ."). [Jurors] will very naturally believe that a person is guilty of the crime with which he is charged if it is proved . . . that he has committed a similar offense, or any offense of an equally heinous character. And it can not be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience, that a man who will commit one crime is very liable subsequently to commit another of the same description. UNDERHILL, supra note 17, § 180, at 310; see Kuhns, supra note 15, at 777 ("Proof that a criminal defendant has committed specific bad acts other than those included in a current charge may be relevant to prove the defendant's guilt."); F.R. Lacy, Admissibility of Evidence of Crimes Not Charged in the Indictment, 31 OR. L. REV. 267, 268-69 ( 1952) ("[P]erhaps in the greater number of cases in which 'other crimes' evidence is offered there is some slight relevance."); Robert G. Lawson, Credibility and Character: A Different Look at an Interminable Problem, 50 NOTRE DAME L. REV. 758, 760 (1975) (voicing the same conclusion with respect to testimonial credibility); Stone, England, supra note 26, at 956 ("By definition . . . , facts similar in the narrow sense to the main fact in issue are always relevant thereto . . . .") (emphasis in original); Evidence-Other Crimes, 29 MICH. L. REV. 473, 473 (1931) [hereinafter Other Crimes] ("Evidence of crimes of any sort, or even of unsuccessful attempts or uncompleted plans, is relevant enough, since it tends to show a criminal tendency and an habitual disregard for accepted standards of conduct.").
152. See, e.g., Marshall McKusick, Techniques in Proof of Other Crimes to Show Guilty Knowledge and Intent, 24 IOWA L. REV. 471, 474 (1939) ("It is conceded as a general rule that the fact that the defendant committed a criminal offense at some other time than the one for which he is presently on trial is irrelevant . . . ."); Slough & Knightly, supra note 1, at 333 ("To state that a man is disposed to commit murder, or disposed to commit larceny, therefore he most likely has committed murder or larceny on this occasion is tantamount to a rejection of all common sense rules of relevancy.") (emphasis in original).
153. See, e.g., Marshall McKusick, Techniques in Proof of Other Crimes to Show Guilty Knowledge and Intent, 24 IOWA L. REV. 471, 474 (1939) ("It is conceded as a general rule that the fact that the defendant committed a criminal offense at some other time than the one for which he is presently on trial is irrelevant . . . ."); Slough & Knightly, supra note 1, at 333 ("To state that a man is disposed to commit murder, or disposed to commit larceny, therefore he most likely has committed murder or larceny on this occasion is tantamount to a rejection of all common sense rules of relevancy.") (emphasis in original).
154. Suppose, for example, that X is arrested for bank robbery. Eyewitnesses identify X as the robber, and X was apprehended near the scene of the crime. The prosecution now wishes to offer evidence that X had committed 10 bank robberies (all using common techniques) in the past year. Further, it is clear that the police did not focus attention on X because of X's prior conduct (thus avoiding the "usual suspects" problem). Under these circumstances, it is difficult to argue that the evidence of X's prior behavior, offered to show a character-based disposition to rob banks, is not highly probative of X's guilt. This appears particularly true if one imagines a situation in which all of the prosecution's evidence is the same except that X is a longtime member of the clergy who is known in the community as a law-abiding citizen. This is not an argument for admissibility of the character evidence at issue in the hypothetical. As I argue herein, there are many compelling reasons to exclude character evidence that do not depend on its lack of significant probative value.
155. Michelson v. United States, 335 U.S. 469, 475-76 (1948) (footnote omitted). In the omitted footnote, Justice Jackson quoted a then nearly century-old statement of Chief Justice Cockburn: "The truth is, this part of our law is an anomaly. Although, logically speaking, it is quite clear that an antecedent bad character would form quite as reasonable a ground for the presumption and probability of guilt as previous good character lays the foundation of innocence, yet you cannot, on the part of the prosecution, go into evidence as to bad character." Id. at 476 n.9 (quoting Regina v. Rowton, 10 Cox Crim. Cas. 25, 29-30 (1865)).
156. 1 WIGMORE, supra note 17, § 194, at 646. Wigmore undoubtedly did not mean that the actual probative value of the evidence is great, but rather that it tends to be given greater weight than that to which it is entitled. See id.
157. See, e.g., Stone, England, supra note 26, at 957 (noting concern that "even though such similar facts might be of probative weight to the fact alleged, they influence the minds of the jurymen unduly"); Clinton J. Morgan, Note, Admissibility in Criminal Prosecutions of Proof of Other Offenses as Substantive Evidence, 3 VAND. L. REV. 779, 779 (1950) ("The evidence is not excluded because it has no probative value, but because its probative value is far outweighed by its prejudicial effect.").
158. See, e.g., Stone, England, supra note 26, at 957 (noting concern that "even though such similar facts might be of probative weight to the fact alleged, they influence the minds of the jurymen unduly"); Clinton J. Morgan, Note, Admissibility in Criminal Prosecutions of Proof of Other Offenses as Substantive Evidence, 3 VAND. L. REV. 779, 779 (1950) ("The evidence is not excluded because it has no probative value, but because its probative value is far outweighed by its prejudicial effect.").
159. 1 WIGMORE, supra note 17, § 194, at 646.
160. See, e.g., United States v. Carrillo, 981 F.2d 772, 774 (5th Cir. 1993) ("Character evidence is not excluded because it has no probative value, but because it sometimes may lead a jury to convict the accused on the ground of bad character deserving punishment regardless of guilt."); MCKELVEY, supra note 92, § 108, at 149 ("The reason for excluding this class of evidence is its unreliability in that it may be easily affected by passion or prejudice on the part of the witness testifying, and also the danger that it may be given undue weight by the jury."); Lacy, supra note 92, at 285 (recognizing potential for prejudice and possibility that prosecutors sometimes offer such evidence "more for its prejudicial than for its probative value"); Stow, supra note 87, at 63 (noting the danger of "being harassed and prejudiced by questions regarding other offences committed or alleged to have been committed by [an accused person]"); Other Crimes, supra note 92, at 473 (noting the danger that the factfinder "will . . . convict the defendant simply on the basis of his criminal record, or at least will be strongly prejudiced against his cause"); Ray Justak, Case Comment, Admissibility of Other Offenses to Prove Intent in Sex Cases, 39 J. CRIM. L. & CRIMINOLOGY 485, 486 (1948) (noting the danger of prejudice to the accused in sex cases).
161. See, e.g., United States v. Carrillo, 981 F.2d 772, 774 (5th Cir. 1993) ("Character evidence is not excluded because it has no probative value, but because it sometimes may lead a jury to convict the accused on the ground of bad character deserving punishment regardless of guilt."); MCKELVEY, supra note 92, § 108, at 149 ("The reason for excluding this class of evidence is its unreliability in that it may be easily affected by passion or prejudice on the part of the witness testifying, and also the danger that it may be given undue weight by the jury."); Lacy, supra note 92, at 285 (recognizing potential for prejudice and possibility that prosecutors sometimes offer such evidence "more for its prejudicial than for its probative value"); Stow, supra note 87, at 63 (noting the danger of "being harassed and prejudiced by questions regarding other offences committed or alleged to have been committed by [an accused person]"); Other Crimes, supra note 92, at 473 (noting the danger that the factfinder "will . . . convict the defendant simply on the basis of his criminal record, or at least will be strongly prejudiced against his cause"); Ray Justak, Case Comment, Admissibility of Other Offenses to Prove Intent in Sex Cases, 39 J. CRIM. L. & CRIMINOLOGY 485, 486 (1948) (noting the danger of prejudice to the accused in sex cases).
162. See, e.g., United States v. Carrillo, 981 F.2d 772, 774 (5th Cir. 1993) ("Character evidence is not excluded because it has no probative value, but because it sometimes may lead a jury to convict the accused on the ground of bad character deserving punishment regardless of guilt."); MCKELVEY, supra note 92, § 108, at 149 ("The reason for excluding this class of evidence is its unreliability in that it may be easily affected by passion or prejudice on the part of the witness testifying, and also the danger that it may be given undue weight by the jury."); Lacy, supra note 92, at 285 (recognizing potential for prejudice and possibility that prosecutors sometimes offer such evidence "more for its prejudicial than for its probative value"); Stow, supra note 87, at 63 (noting the danger of "being harassed and prejudiced by questions regarding other offences committed or alleged to have been committed by [an accused person]"); Other Crimes, supra note 92, at 473 (noting the danger that the factfinder "will . . . convict the defendant simply on the basis of his criminal record, or at least will be strongly prejudiced against his cause"); Ray Justak, Case Comment, Admissibility of Other Offenses to Prove Intent in Sex Cases, 39 J. CRIM. L. & CRIMINOLOGY 485, 486 (1948) (noting the danger of prejudice to the accused in sex cases).
163. See, e.g., United States v. Carrillo, 981 F.2d 772, 774 (5th Cir. 1993) ("Character evidence is not excluded because it has no probative value, but because it sometimes may lead a jury to convict the accused on the ground of bad character deserving punishment regardless of guilt."); MCKELVEY, supra note 92, § 108, at 149 ("The reason for excluding this class of evidence is its unreliability in that it may be easily affected by passion or prejudice on the part of the witness testifying, and also the danger that it may be given undue weight by the jury."); Lacy, supra note 92, at 285 (recognizing potential for prejudice and possibility that prosecutors sometimes offer such evidence "more for its prejudicial than for its probative value"); Stow, supra note 87, at 63 (noting the danger of "being harassed and prejudiced by questions regarding other offences committed or alleged to have been committed by [an accused person]"); Other Crimes, supra note 92, at 473 (noting the danger that the factfinder "will . . . convict the defendant simply on the basis of his criminal record, or at least will be strongly prejudiced against his cause"); Ray Justak, Case Comment, Admissibility of Other Offenses to Prove Intent in Sex Cases, 39 J. CRIM. L. & CRIMINOLOGY 485, 486 (1948) (noting the danger of prejudice to the accused in sex cases).
164. See, e.g., United States v. Carrillo, 981 F.2d 772, 774 (5th Cir. 1993) ("Character evidence is not excluded because it has no probative value, but because it sometimes may lead a jury to convict the accused on the ground of bad character deserving punishment regardless of guilt."); MCKELVEY, supra note 92, § 108, at 149 ("The reason for excluding this class of evidence is its unreliability in that it may be easily affected by passion or prejudice on the part of the witness testifying, and also the danger that it may be given undue weight by the jury."); Lacy, supra note 92, at 285 (recognizing potential for prejudice and possibility that prosecutors sometimes offer such evidence "more for its prejudicial than for its probative value"); Stow, supra note 87, at 63 (noting the danger of "being harassed and prejudiced by questions regarding other offences committed or alleged to have been committed by [an accused person]"); Other Crimes, supra note 92, at 473 (noting the danger that the factfinder "will . . . convict the defendant simply on the basis of his criminal record, or at least will be strongly prejudiced against his cause"); Ray Justak, Case Comment, Admissibility of Other Offenses to Prove Intent in Sex Cases, 39 J. CRIM. L. & CRIMINOLOGY 485, 486 (1948) (noting the danger of prejudice to the accused in sex cases).
165. 1 WIGMORE, supra note 17, § 216, at 713. He wrote that "the use of alleged particular acts ranging over the entire period of the defendant's life makes it impossible for him to be prepared to refute the charge, any or all of which may be mere fabrications." Id. § 193, at 646. (Wigmore may have been speaking both of surprise and the sort of prejudice already discussed.)
166. See supra note 24.
167. See, e.g., THAYER, supra note 17, at 525 (noting that such evidence "tend[s] to surprise a man"); Stone, England, supra note 26, at 957-58 ("such evidence is said to be excluded because its introduction surprises the defendant unfairly, compelling him, at a moment's notice, to answer charges concerning the whole of his past life"); Justak, supra note 99, at 486 ("[s]uch evidence is also objectionable because it requires the defendant to defend himself against crimes with which he is not charged in the indictment"). One other author, while not specifically mentioning surprise, nevertheless discussed considerations of fairness as supporting the rule. See MCKELVEY, supra note 92, § 108, at 149-50 (asserting that the rule is supported by "the same spirit of fairness which concedes everything to the accused, and throws all burdens upon the accuser, that characterizes the English law of evidence").
168. See, e.g., THAYER, supra note 17, at 525 (noting that such evidence "tend[s] to surprise a man"); Stone, England, supra note 26, at 957-58 ("such evidence is said to be excluded because its introduction surprises the defendant unfairly, compelling him, at a moment's notice, to answer charges concerning the whole of his past life"); Justak, supra note 99, at 486 ("[s]uch evidence is also objectionable because it requires the defendant to defend himself against crimes with which he is not charged in the indictment"). One other author, while not specifically mentioning surprise, nevertheless discussed considerations of fairness as supporting the rule. See MCKELVEY, supra note 92, § 108, at 149-50 (asserting that the rule is supported by "the same spirit of fairness which concedes everything to the accused, and throws all burdens upon the accuser, that characterizes the English law of evidence").
169. See, e.g., THAYER, supra note 17, at 525 (noting that such evidence "tend[s] to surprise a man"); Stone, England, supra note 26, at 957-58 ("such evidence is said to be excluded because its introduction surprises the defendant unfairly, compelling him, at a moment's notice, to answer charges concerning the whole of his past life"); Justak, supra note 99, at 486 ("[s]uch evidence is also objectionable because it requires the defendant to defend himself against crimes with which he is not charged in the indictment"). One other author, while not specifically mentioning surprise, nevertheless discussed considerations of fairness as supporting the rule. See MCKELVEY, supra note 92, § 108, at 149-50 (asserting that the rule is supported by "the same spirit of fairness which concedes everything to the accused, and throws all burdens upon the accuser, that characterizes the English law of evidence").
170. See, e.g., THAYER, supra note 17, at 525 (noting that such evidence "tend[s] to surprise a man"); Stone, England, supra note 26, at 957-58 ("such evidence is said to be excluded because its introduction surprises the defendant unfairly, compelling him, at a moment's notice, to answer charges concerning the whole of his past life"); Justak, supra note 99, at 486 ("[s]uch evidence is also objectionable because it requires the defendant to defend himself against crimes with which he is not charged in the indictment"). One other author, while not specifically mentioning surprise, nevertheless discussed considerations of fairness as supporting the rule. See MCKELVEY, supra note 92, § 108, at 149-50 (asserting that the rule is supported by "the same spirit of fairness which concedes everything to the accused, and throws all burdens upon the accuser, that characterizes the English law of evidence").
171. The drafters of the Federal Rules of Evidence did not include "surprise" as among the dangers against which probative value should be measured when determining whether to exclude relevant evidence. The Advisory Committee appeared to believe that danger of surprise can be reduced by notice requirements and other procedural devices, and that its impact can be evaluated under the heading of "unfair prejudice." See FED. R. EVID. 403 advisory committee's note. An amendment to Federal Rule 404(b), in fact, requires that in criminal cases, the prosecution provide the defendant notice of its intent to introduce evidence of the defendant's other acts, and of the general nature of the evidence it intends to offer. See FED. R. EVID. 404(b).
172. Kuhns, supra note 15, at 777; see also Stone, England, supra note 26, at 958 ("the introduction of [other acts] evidence is said to bring in collateral issues of which there would be no end"); Justak, supra note 99, at 486 (noting that other acts evidence "tends to complicate the issues for the jury").
173. Kuhns, supra note 15, at 777; see also Stone, England, supra note 26, at 958 ("the introduction of [other acts] evidence is said to bring in collateral issues of which there would be no end"); Justak, supra note 99, at 486 (noting that other acts evidence "tends to complicate the issues for the jury").
174. Kuhns, supra note 15, at 777; see also Stone, England, supra note 26, at 958 ("the introduction of [other acts] evidence is said to bring in collateral issues of which there would be no end"); Justak, supra note 99, at 486 (noting that other acts evidence "tends to complicate the issues for the jury").
175. See Harrison's Trial, 12 How. St. Tr. 833, 864 (Old Bailey, London 1692); supra note 24 (discussing Harrison's Trial, where Lord Chief Justice Holt criticized evidentiary practices that amount to putting the defendant's entire life on trial); see also MCKELVEY, supra note 92, § 108, at 150 ("In many civil cases the exclusion of character evidence rests also upon the very slight value which it has to establish any fact in issue, and the danger of leading the jury into collateral inquiry which will confuse and obscure the real issues.").
176. Some rules, of course, can serve both adjudicatory and substantive purposes. For a preliminary examination of the relationship between evidentiary rules and substantive law, see David P. Leonard, Rules of Evidence and Substantive Policy, 25 LOY. L.A. L. REV. 797 (1992).
177. Perhaps the clearest example is the limited-admissibility rule, which requires the court to take steps to prevent the jury from using evidence for impermissible purposes. See FED. R. EVID. 105. Federal Rule 105 is discussed at length in LEONARD, supra note 36, ch. 1.
178. See, e.g., FED. R. EVID. 102 (instructing the court to construe the rules "to the end that the truth may be ascertained").
179. See, e.g., id. Rule 403 (empowering the judge to exclude evidence that is needlessly cumulative or would cause undue delay); id. Rule 611(a)(2) (empowering the judge to take steps to "avoid needless consumption of time"); id. Rule 102 (requiring the judge to administer the trial so as to "eliminat[e] . . . unjustifiable expense and delay").
180. See, e.g., id. Rule 611 (generally empowering the judge to control the mode and order of witness interrogation, and loosening common law rules concerning the scope of cross-examination and the use of leading questions).
181. See, e.g., id. Rule 611(a)(3) (empowering the court to control interrogation so as to "protect witnesses from harassment or undue embarrassment").
182. See, e.g., id. Rule 403 (guarding against the admission of evidence that would "confus[e] the issues, or mislead[] the jury").
183. There are many examples of rules promoting fairness. Among them are id. Rule 102 (citing "fairness in administration" as a purpose of the rules), and id. Rule 106 (requiring admission of other parts of a writing when a party is allowed to introduce some part of the writing). The so-called "curative admissibility" doctrine also promotes fairness by allowing admission of evidence that would otherwise have been excluded when the adverse party improperly introduces inadmissible evidence. See 21 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5039, at 199 (1977) (describing concept referred to variously as "'waiver,' 'estoppel,' 'opening the door,' 'fighting fire with fire,' and 'curative admissibility'"). In addition, rules requiring notice to the adverse party when a party intends to introduce certain types of evidence are fairness-oriented rules. See, e.g., FED. R. EVID. 404(b) (requiring notice of intent to introduce other crimes, wrongs, or acts evidence); id. Rule 412(c) (requiring notice of intent to introduce evidence of past sexual behavior of alleged victim in sex-offense cases).
184. This is the most common use of Federal Rule 403 and its state counterparts.
185. See supra notes 95-99 and accompanying text.
186. See FED. R. EVID. 407 (excluding evidence of subsequent remedial measures when offered "to prove negligence or culpable conduct").
187. See LEONARD, supra note 36, §§ 2.3.1, 2.3.3.
188. See id. § 2.3.2.
189. See FED. R. EVID. 411 (excluding evidence of the possession of liability insurance coverage if offered "upon the issue whether the person acted negligently or otherwise wrongfully").
190. See LEONARD, supra note 36, §§ 6.4.1-.4.2.
191. See id. § 6.4.3.
192. See supra Part II.B.
193. I am grateful to Professor Miguel Méndez of Stanford Law School for supplying this example.
194. Psalms 34:13-14.
195. See SHIMON FINKELMAN & YITZCHAK BERKOWITZ, A LESSON A DAY at xvi (1995). The book is based on the writings of Chofetz Chaim.
196. See id.
197. "The Torah's laws of speech, whose observance is capsulized by the timeless term Shmiras HaLoshon, constitutes G[o]d's plan for how people should live with each other." Id. at xxi. "When one guards his speech and engages others in conversations that are positive and constructive, the merit of Shmiras HaLoshon is multiplied many times because, by exercising restraint in speech, one draws others to this mitzvah as well." Id. at xxxiv.
198. Id. at xxi-xxii.
199. Finkelman and Berkowitz write: [T]his devastating force has somehow glided through the centuries disguised as a relatively harmless aspect of human nature. But the toxicity of loshon hora isn't hard to grasp. One need only examine the aspects of human nature that fuel it: arrogance, anger, jealousy, a critical attitude and a negative outlook. That is the formula that energizes loshon hora and sets it flying. Id. at xxiii.
200. Id. at xxvii-xxviii.
201. One form of loshon hora, known as motzi shem ra, is simply slanderous. But other forms need not be untrue. See id. at xxxix-xl.
202. Id. at xxxvi.
203. As the authors of one text state, "In his eyes, he is surrounded by irritating, inconsiderate, flawed people who make his world a disappointing, uncomfortable place." Id. at xxxvii. More deeply, it is thought that the speaker's "words, and the sense of power they confer upon him, foil the soul's constant striving toward its Source. By pushing others down, loshon hora provides one with the illusion of becoming more elevated." Id. at xxxvii-xxxviii.
204. See id. at 58.
205. See id. at 230.
206. See id. at xxxii.
207. See id. at xxxv.
208. Id. at xxxix. It has even been said that Shmiras HaLoshon is the key for attaining God's mercy. See id. at xlv.
209. See FED. R. EVID. 413-15.
210. There are exceptions to the prohibition of loshon hora, the most common of which is when relating such information serves a constructive purpose. Even then, however, there are strict limits. The rules are complex, but may be summarized as follows: One may speak negatively about a person only to help the person or another the person has victimized, to resolve major disputes, or to enable others to learn from the person's mistakes. Even then, several preconditions must each be satisfied: The remarks must be based on firsthand information and careful investigation; it must be clear that the person is wrong; the person has been confronted but refuses to change his behavior; the statement will be accurate; the speaker's intent is solely constructive, and there is a reasonable chance that the intended goal will be achieved; there is no alternative means of achieving the goal; and the statement will not cause undue harm. See FINKELMAN & BERKOWITZ, supra note 125, at 148. So, for example, when one knows of a serious threat to another person of which that person is unaware, it is permissible (in fact, obligatory) to pass along the information, as long as the conditions described above have been satisfied. See id. at 188. (In cases of only possible harm, a warning may be given, but if based on hearsay, the warning must be couched as founded on unconfirmed secondhand information that may or may not be true. See id. at 190.) Negative information may also be shared when necessary to prevent or break up a relationship that is harmful to one of the parties, again assuming that the preconditions have been met. See id. at 210. The narrow exceptions to the prohibition of loshon hora do not track perfectly those that apply in contemporary evidence law, though some states have partly adopted the exception for the ignorant victim of a threat. See, e.g., Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 345-51 (Cal. 1976) (holding that therapist-defendant could be liable for failing to warn plaintiff of potential serious threat posed by defendant's patient, in part because societal interest outweighs general practice of doctor-patient confidentiality). Even if the prosecution can demonstrate that the character evidence it possesses is accurate and will help lead to the conviction of a dangerous criminal, the rules do not allow admission of the evidence.
211. It is true that not all uses of character in daily life concern decisions about the future. All parents, for example, are called upon often to resolve disputes among their children that require determining what has happened in the past. But even when acting in a pseudoadjudicatory mode, we are often not truly called upon to make actual determinations of past events. Indeed, parents often resolve the dispute among their children not by reaching a decision about what occurred, but by assuming the status of informal mediator, seeking to facilitate compromise and accommodation rather than assuming the role of factfinder. Even in situations in which parents "decide" facts about past events, such decisions are informal and often based much more on the desire to terminate the dispute than adjudicate rights.
212. In the middle territory between informal private behavior and formal courtroom decisionmaking, errors of judgment can be very costly. Consider the case of Richard Jewell, for several months very publicly held out as a suspect in the fatal bombing that took place in a public square during the 1996 Summer Olympics in Atlanta. The event occurred in July 1996, and it was not until late October, nearly three months later, that theformally notified Mr. Jewell that he was no longer a suspect. In the interim, his life was made ex F.B.I. tremely difficult. He could not find employment, and his name became synonymous with a certain type of profile of a deranged terrorist. He can hardly be accused of exaggerating when he states that the time during which he was a suspect was a "nightmare," and that the accusation nearly destroyed his life. Demonstrating the impact of inaccurate reputation and opinion evidence, Jewell stated, "'Let the headlines be based on facts. . . . Don't shape the facts to make the headlines.'" Eric Harrison, Tearful Jewell Describes 3-Month "Nightmare", L.A. TIMES, Oct. 29, 1996, at A1 (omission added).
213. Of course, even if character evidence were allowed, it would seldom constitute the only evidence against defendant. In some cases, however, it would undoubtedly tip the scales against defendant.
214. Even much earlier, however, cities had begun to grow. It has been estimated that during the period from 1050 to 1200, the urban population of Europe increased tenfold. See BERMAN, supra note 82, at 534.
215. This does not mean that Western "feudal" law and society did not contain the seeds of some modern institutions; the contrary appears to be true. See id. at 532-45. Berman writes: The historiography is basic to the theory: if the historiography is wrong, the theory falls with it. If the main features of modern Western law, the main legal concepts and institutions and processes, emerged in the late eleventh and twelfth centuries - the heyday of what social theorists, starting with the Enlightenment and the French Revolution, have called the era of feudalism - then that fact in itself is a substantial refutation of the usual materialist view both of law and of history. Id. at 543-44.
216. James Bradley Thayer, The Older Modes of Trial, in 2 SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY 367, 376 (Association of Am. Law Sch. ed., 1908) [hereinafter SELECT ESSAYS] (citations omitted).
217. See BERMAN, supra note 82, at 449.
218. Vestiges of older forms of trial continued in parts of Europe for centuries after reforms began: The blood feud continued in many parts of Europe into the fifteenth century, despite the opposition of both canon law and royal law. . . . Although Germanic procedures of compurgation were transformed into testimony under oath, nevertheless the measuring of the value of an oath according to the status of the witness showed traces of the old formalism. Id. at 527.
219. See John Henry Wigmore, A General Survey of the History of the Rules of Evidence, in 2 SELECT ESSAYS, supra note 146, at 691, 691-92.
220. Id. at 692.
221. Id.
222. Id. at 692-93.
223. See id. at 695-97.
224. See supra Part II.B.
225. See Mark Cammack, In Search of the Post-Positivist Jury, 70 IND. L.J. 405, 410 (1995) (noting "the Enlightenment belief in the fundamental separability of the subjective mind and the objective world, and the identification of truth with neutral objective reality"). Cammack also stated that current understandings of ideal qualifications for judicial factfinders can be traced to the Enlightenment idea that truth is objective and knowledge true only if it is an accurate representation of the external world. See id. at 411-15; see also Paul D. Carrington, ADR and Future Adjudication: A Primer on Dispute Resolution, 15 REV. LITIG. 485, 486 (1996) ("Since the Enlightenment, there has been a sustained effort . . . to devise methods of dispute resolution applying previously stated law to facts, facts discerned on the basis of documentary and real evidence, sworn testimony, empirical probability, and the application of rational inference from undisputed reality.").
226. See Mark Cammack, In Search of the Post-Positivist Jury, 70 IND. L.J. 405, 410 (1995) (noting "the Enlightenment belief in the fundamental separability of the subjective mind and the objective world, and the identification of truth with neutral objective reality"). Cammack also stated that current understandings of ideal qualifications for judicial factfinders can be traced to the Enlightenment idea that truth is objective and knowledge true only if it is an accurate representation of the external world. See id. at 411-15; see also Paul D. Carrington, ADR and Future Adjudication: A Primer on Dispute Resolution, 15 REV. LITIG. 485, 486 (1996) ("Since the Enlightenment, there has been a sustained effort . . . to devise methods of dispute resolution applying previously stated law to facts, facts discerned on the basis of documentary and real evidence, sworn testimony, empirical probability, and the application of rational inference from undisputed reality.").
227. See Mark Cammack, In Search of the Post-Positivist Jury, 70 IND. L.J. 405, 410 (1995) (noting "the Enlightenment belief in the fundamental separability of the subjective mind and the objective world, and the identification of truth with neutral objective reality"). Cammack also stated that current understandings of ideal qualifications for judicial factfinders can be traced to the Enlightenment idea that truth is objective and knowledge true only if it is an accurate representation of the external world. See id. at 411-15; see also Paul D. Carrington, ADR and Future Adjudication: A Primer on Dispute Resolution, 15 REV. LITIG. 485, 486 (1996) ("Since the Enlightenment, there has been a sustained effort . . . to devise methods of dispute resolution applying previously stated law to facts, facts discerned on the basis of documentary and real evidence, sworn testimony, empirical probability, and the application of rational inference from undisputed reality.").
228. Examining these massive demographic changes, one author writes: "From the end of Reconstruction until World War I, the United States was transformed from an agrarian, rural nation in which business was conducted primarily by small, locally owned firms, to an urban, industrial economy in which business was dominated by large, nationally based corporations." Deborah A. Ballam, The Evolution of the Government-Business Relationship in the United States: Colonial Times to Present, 31 AM. BUS. L.J. 553, 598 (1994). The author also notes that "[t]he rapidly growing urban areas controlled sources of finance and marketing. Significant economic decisions now were being made in far away places by unknown parties, rather than locally." Id. at 602. Another historian describes the United States during the nineteenth century as a society of "island communities" which conducted their business informally and personally. See ROBERT H. WIEBE, THE SEARCH FOR ORDER 1877-1920, at xiii (1967). Today, of course, the economy is becoming global, as evidenced by the North American Free Trade Agreement, the expansion of the European Community, and other multinational trade agreements.
229. Examining these massive demographic changes, one author writes: "From the end of Reconstruction until World War I, the United States was transformed from an agrarian, rural nation in which business was conducted primarily by small, locally owned firms, to an urban, industrial economy in which business was dominated by large, nationally based corporations." Deborah A. Ballam, The Evolution of the Government-Business Relationship in the United States: Colonial Times to Present, 31 AM. BUS. L.J. 553, 598 (1994). The author also notes that "[t]he rapidly growing urban areas controlled sources of finance and marketing. Significant economic decisions now were being made in far away places by unknown parties, rather than locally." Id. at 602. Another historian describes the United States during the nineteenth century as a society of "island communities" which conducted their business informally and personally. See ROBERT H. WIEBE, THE SEARCH FOR ORDER 1877-1920, at xiii (1967). Today, of course, the economy is becoming global, as evidenced by the North American Free Trade Agreement, the expansion of the European Community, and other multinational trade agreements.
230. Examining these massive demographic changes, one author writes: "From the end of Reconstruction until World War I, the United States was transformed from an agrarian, rural nation in which business was conducted primarily by small, locally owned firms, to an urban, industrial economy in which business was dominated by large, nationally based corporations." Deborah A. Ballam, The Evolution of the Government-Business Relationship in the United States: Colonial Times to Present, 31 AM. BUS. L.J. 553, 598 (1994). The author also notes that "[t]he rapidly growing urban areas controlled sources of finance and marketing. Significant economic decisions now were being made in far away places by unknown parties, rather than locally." Id. at 602. Another historian describes the United States during the nineteenth century as a society of "island communities" which conducted their business informally and personally. See ROBERT H. WIEBE, THE SEARCH FOR ORDER 1877-1920, at xiii (1967). Today, of course, the economy is becoming global, as evidenced by the North American Free Trade Agreement, the expansion of the European Community, and other multinational trade agreements.
231. See MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (Talcott Parsons trans., Charles Scribner's Sons 1958) (1904-05). For criticism of Weber's historicism, see BERMAN, supra note 82, at 545-52. While praising aspects of Weber's work, Berman criticizes Weber's classification of societies into various ideal types (which, to some extent at least, correspond to actual societies), and each with a particular idealized form of law. This classification system made it difficult for Weber to see that actual Western legal systems as they emerged during the late eleventh and early twelfth centuries actually contained aspects of all of the types Weber had described. See id. at 550-51.
232. See MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (Talcott Parsons trans., Charles Scribner's Sons 1958) (1904-05). For criticism of Weber's historicism, see BERMAN, supra note 82, at 545-52. While praising aspects of Weber's work, Berman criticizes Weber's classification of societies into various ideal types (which, to some extent at least, correspond to actual societies), and each with a particular idealized form of law. This classification system made it difficult for Weber to see that actual Western legal systems as they emerged during the late eleventh and early twelfth centuries actually contained aspects of all of the types Weber had described. See id. at 550-51.
233. CORNELIUS BURGES, THE CONFESSION OF FAITH OF THE ASSEMBLY OF DIVINES AT WESTMINSTER ch. IX (Of Free-Will), § 3 (S.W. Carruthers ed., Free Presbyterian Publications 1978) (1646).
234. Id. ch. III (Of God's Eternal Decree), § 3.
235. Id. ch. III, § 5.
236. Id. ch. III, § 7.
237. WEBER, supra note 157, at 102-04 (footnotes omitted). In this, Calvin's philosophy was suggested by Luther's own views, though Luther did not emphasize this aspect of the doctrine. See id. at 99-100. Some Protestant thinkers after Luther rejected this view. As Weber explained: Melancthon quite deliberately avoided adopting the dark and dangerous teaching in the Augsburg Confession, and for the Church fathers of Lutheranism it was an article of faith that grace was revocable (amissibilis), and could be won again by penitent humility and faithful trust in the word of God and in the sacraments. Id. at 102.
238. As Weber wrote: [T]wo principal, mutually connected, types of pastoral advice appear. On the one hand it is held to be an absolute duty to consider oneself chosen, and to combat all doubts as temptations of the devil. . . . The exhortation of the apostle to make fast one's own call is here interpreted as a duty to attain certainty of one's own election and justification in the daily struggle of life. In the place of the humble sinners to whom Luther promises grace if they trust themselves to God in penitent faith are bred those self-confident saints whom we can rediscover in the hard Puritan merchants of the heroic age of capitalism and in isolated instances down to the present. On the other hand, in order to attain that self-confidence intense worldly activity is recommended as the most suitable means. It and it alone disperses religious doubts and gives the certainty of grace. Id. at 111-12 (footnotes omitted).
239. Describing Puritan doctrine, Weber wrote that "works are not the cause, but only the means of knowing one's state of grace." Id. at 141.
240. The concept of "individualism," of course, can take many forms, some of which could lead to a very different conclusion. One iteration, for example, would hold that a judgment of individual worth should be based upon aspects of a person's private, inner life as well as of her public deeds. On this view, it is precisely a person's inner being that makes her a unique individual; the assignment of moral responsibility would thus require an inquiry into character. Contrasting earlier guilds with capitalist arrangements of American Protestant entrepreneurs, Weber wrote: The sect controlled and regulated the members' conduct exclusively in the sense of formal righteousness and methodical asceticism. . . . The capitalist success of a guild member undermined the spirit of the guild - as happened in England and France - and hence capitalist success was shunned. But the capitalist success of a sect brother, if legally attained, was proof of his worth and of his state of grace, and it raised the prestige and the propaganda chances of the sect. Such success was therefore welcome. . . . [T]he guild, of course, could not give birth to the modern bourgeois capitalist ethos. Only the methodical way of life of the ascetic sects could legitimate and put a halo around the economic "individualist" impulses of the modern capitalist ethos. MAX WEBER, The Protestant Sects and the Spirit of Capitalism, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 302, 322 (H.H. Gerth & C. Wright Mills eds. & trans., 1946) (emphasis in original).
241. IMMANUEL KANT, THE METAPHYSICS OF MORALS 140 (Mary Gregor trans., Cambridge Univ. Press 1991) (1797) (emphasis in original). Kant continued: For a man can never be treated merely as a means to the purposes of another or be put among the objects of rights to things: His innate personality protects him from this, even though he can be condemned to lose his civil personality. He must previously have been found punishable before any thought can be given to drawing from his punishment something of use for himself or his fellow citizens. Id. at 140-41 (emphasis in original).
242. IMMANUEL KANT, THE METAPHYSICS OF MORALS 140 (Mary Gregor trans., Cambridge Univ. Press 1991) (1797) (emphasis in original). Kant continued: For a man can never be treated merely as a means to the purposes of another or be put among the objects of rights to things: His innate personality protects him from this, even though he can be condemned to lose his civil personality. He must previously have been found punishable before any thought can be given to drawing from his punishment something of use for himself or his fellow citizens. Id. at 140-41 (emphasis in original).
243. IMMANUEL KANT, CRITIQUE OF PURE REASON 475 n.a (Norman Kemp Smith trans., London, MacMillan & Co. 1963) (1787); see ROGER J. SULLIVAN, IMMANUEL KANT'S MORAL THEORY 243 (1989) ("When Kant addresses the question of judging legal guilt, he necessarily limits such judgments to considerations of a person's external behavior and that person's empirical or psychological personality and history. There is no way to determine with any certitude an individual's purely internal moral character.").
244. IMMANUEL KANT, CRITIQUE OF PURE REASON 475 n.a (Norman Kemp Smith trans., London, MacMillan & Co. 1963) (1787); see ROGER J. SULLIVAN, IMMANUEL KANT'S MORAL THEORY 243 (1989) ("When Kant addresses the question of judging legal guilt, he necessarily limits such judgments to considerations of a person's external behavior and that person's empirical or psychological personality and history. There is no way to determine with any certitude an individual's purely internal moral character.").
245. G.W.F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT § 100, at 126 (Allen W. Wood ed., H.B. Nisbet trans., Cambridge Univ. Press 1991) (1821) (emphasis in original).
246. C.B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM 255 (1962).
247. Support for the character rule can also be found in eighteenth and nineteenth century political philosophy. The change from an agrarian to an industrial economy, and from a highly stratified to a more complex society, coincided with the rise of the equality principle embodied in such public documents as the American Declaration of Independence. The view that "all [people] are created equal," expressed at the nation's founding and reaffirmed at the height of the Civil War, see, e.g., GARRY WILLS, LINCOLN AT GETTYSBURG (1992), is incompatible with a rule permitting trial by inner moral character or social status. The Fourteenth Amendment to the Constitution, which guarantees to all citizens the "equal protection" of the laws, is also an explicit embrace of the fundamental concept of equality before the law. This sentiment was occasionally echoed by the courts. In People v. Molineux, 61 N.E. 286 (N.Y. 1901), for example, the New York court defended the character rule partly on the basis that it is "rooted in [a] jealous regard for the liberty of the individual." Id. at 293. For further discussion of Molineux, see supra notes 46-48 and accompanying text. To judge guilt or innocence of crime on the basis of what is presumed to be the person's moral character would violate the principle of equality at the heart of the relationship between the American government and the people. A rule requiring that people be judged by their actions and specifically defined state of mind at the time in question accords more respect to the principle of equality. Admittedly, the equality principle argues against the rule generally permitting a criminal defendant to offer evidence of her good character to prove her innocence. See, e.g., FED. R. EVID. 404(a)(1). A system that allows members of privileged classes or well-known and admired celebrities to assert their innocence by means of positive character evidence arguably offers those people benefits that would not be available to average people. On the other hand, the likelihood of preventing jurors from considering the reputations of well-known personalities is minimal.
248. Support for the character rule can also be found in eighteenth and nineteenth century political philosophy. The change from an agrarian to an industrial economy, and from a highly stratified to a more complex society, coincided with the rise of the equality principle embodied in such public documents as the American Declaration of Independence. The view that "all [people] are created equal," expressed at the nation's founding and reaffirmed at the height of the Civil War, see, e.g., GARRY WILLS, LINCOLN AT GETTYSBURG (1992), is incompatible with a rule permitting trial by inner moral character or social status. The Fourteenth Amendment to the Constitution, which guarantees to all citizens the "equal protection" of the laws, is also an explicit embrace of the fundamental concept of equality before the law. This sentiment was occasionally echoed by the courts. In People v. Molineux, 61 N.E. 286 (N.Y. 1901), for example, the New York court defended the character rule partly on the basis that it is "rooted in [a] jealous regard for the liberty of the individual." Id. at 293. For further discussion of Molineux, see supra notes 46-48 and accompanying text. To judge guilt or innocence of crime on the basis of what is presumed to be the person's moral character would violate the principle of equality at the heart of the relationship between the American government and the people. A rule requiring that people be judged by their actions and specifically defined state of mind at the time in question accords more respect to the principle of equality. Admittedly, the equality principle argues against the rule generally permitting a criminal defendant to offer evidence of her good character to prove her innocence. See, e.g., FED. R. EVID. 404(a)(1). A system that allows members of privileged classes or well-known and admired celebrities to assert their innocence by means of positive character evidence arguably offers those people benefits that would not be available to average people. On the other hand, the likelihood of preventing jurors from considering the reputations of well-known personalities is minimal.
249. See Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951). Civil liability in the common law was originally based on a fairly simple concept - trespass. The King's Court in early England issued the writ of trespass to any litigant who could show that he had sustained a physical contact on his person or property, due to the activity of another. . . . [I]t should be noted that this ancient concept of trespass had reference to any contact achieved as the consequence of one's conduct against the interest of another, no matter under what circumstances it occurred, as long as the defendant's causative conduct was his voluntary act. Id. at 361-62; see also MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 70 (1977) ("Under traditional legal doctrine, trespasses or nuisances to land could not be justified by the social utility of the actor's conduct nor could the absence of negligence serve as a limitation on legal liability for injury to person or property."); John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 315, 316 (1894) (arguing that early tort law was "indiscriminate" in that it did not distinguish between acts that were intentional and acts that were accidental). The conventional wisdom has been attacked in recent years by suggestions that the historical record does not support such a neat characterization of early common law. See, e.g., LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 299-302 (2d ed. 1985); G. EDWARD WHITE, TORT LAW IN AMERICA 13-15 (1980); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717, 1722-34 (1981).
250. See Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951). Civil liability in the common law was originally based on a fairly simple concept - trespass. The King's Court in early England issued the writ of trespass to any litigant who could show that he had sustained a physical contact on his person or property, due to the activity of another. . . . [I]t should be noted that this ancient concept of trespass had reference to any contact achieved as the consequence of one's conduct against the interest of another, no matter under what circumstances it occurred, as long as the defendant's causative conduct was his voluntary act. Id. at 361-62; see also MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 70 (1977) ("Under traditional legal doctrine, trespasses or nuisances to land could not be justified by the social utility of the actor's conduct nor could the absence of negligence serve as a limitation on legal liability for injury to person or property."); John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 315, 316 (1894) (arguing that early tort law was "indiscriminate" in that it did not distinguish between acts that were intentional and acts that were accidental). The conventional wisdom has been attacked in recent years by suggestions that the historical record does not support such a neat characterization of early common law. See, e.g., LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 299-302 (2d ed. 1985); G. EDWARD WHITE, TORT LAW IN AMERICA 13-15 (1980); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717, 1722-34 (1981).
251. See Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951). Civil liability in the common law was originally based on a fairly simple concept - trespass. The King's Court in early England issued the writ of trespass to any litigant who could show that he had sustained a physical contact on his person or property, due to the activity of another. . . . [I]t should be noted that this ancient concept of trespass had reference to any contact achieved as the consequence of one's conduct against the interest of another, no matter under what circumstances it occurred, as long as the defendant's causative conduct was his voluntary act. Id. at 361-62; see also MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 70 (1977) ("Under traditional legal doctrine, trespasses or nuisances to land could not be justified by the social utility of the actor's conduct nor could the absence of negligence serve as a limitation on legal liability for injury to person or property."); John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 315, 316 (1894) (arguing that early tort law was "indiscriminate" in that it did not distinguish between acts that were intentional and acts that were accidental). The conventional wisdom has been attacked in recent years by suggestions that the historical record does not support such a neat characterization of early common law. See, e.g., LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 299-302 (2d ed. 1985); G. EDWARD WHITE, TORT LAW IN AMERICA 13-15 (1980); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717, 1722-34 (1981).
252. See Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951). Civil liability in the common law was originally based on a fairly simple concept - trespass. The King's Court in early England issued the writ of trespass to any litigant who could show that he had sustained a physical contact on his person or property, due to the activity of another. . . . [I]t should be noted that this ancient concept of trespass had reference to any contact achieved as the consequence of one's conduct against the interest of another, no matter under what circumstances it occurred, as long as the defendant's causative conduct was his voluntary act. Id. at 361-62; see also MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 70 (1977) ("Under traditional legal doctrine, trespasses or nuisances to land could not be justified by the social utility of the actor's conduct nor could the absence of negligence serve as a limitation on legal liability for injury to person or property."); John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 315, 316 (1894) (arguing that early tort law was "indiscriminate" in that it did not distinguish between acts that were intentional and acts that were accidental). The conventional wisdom has been attacked in recent years by suggestions that the historical record does not support such a neat characterization of early common law. See, e.g., LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 299-302 (2d ed. 1985); G. EDWARD WHITE, TORT LAW IN AMERICA 13-15 (1980); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717, 1722-34 (1981).
253. See Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951). Civil liability in the common law was originally based on a fairly simple concept - trespass. The King's Court in early England issued the writ of trespass to any litigant who could show that he had sustained a physical contact on his person or property, due to the activity of another. . . . [I]t should be noted that this ancient concept of trespass had reference to any contact achieved as the consequence of one's conduct against the interest of another, no matter under what circumstances it occurred, as long as the defendant's causative conduct was his voluntary act. Id. at 361-62; see also MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 70 (1977) ("Under traditional legal doctrine, trespasses or nuisances to land could not be justified by the social utility of the actor's conduct nor could the absence of negligence serve as a limitation on legal liability for injury to person or property."); John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 315, 316 (1894) (arguing that early tort law was "indiscriminate" in that it did not distinguish between acts that were intentional and acts that were accidental). The conventional wisdom has been attacked in recent years by suggestions that the historical record does not support such a neat characterization of early common law. See, e.g., LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 299-302 (2d ed. 1985); G. EDWARD WHITE, TORT LAW IN AMERICA 13-15 (1980); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717, 1722-34 (1981).
254. See Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951). Civil liability in the common law was originally based on a fairly simple concept - trespass. The King's Court in early England issued the writ of trespass to any litigant who could show that he had sustained a physical contact on his person or property, due to the activity of another. . . . [I]t should be noted that this ancient concept of trespass had reference to any contact achieved as the consequence of one's conduct against the interest of another, no matter under what circumstances it occurred, as long as the defendant's causative conduct was his voluntary act. Id. at 361-62; see also MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 70 (1977) ("Under traditional legal doctrine, trespasses or nuisances to land could not be justified by the social utility of the actor's conduct nor could the absence of negligence serve as a limitation on legal liability for injury to person or property."); John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 315, 316 (1894) (arguing that early tort law was "indiscriminate" in that it did not distinguish between acts that were intentional and acts that were accidental). The conventional wisdom has been attacked in recent years by suggestions that the historical record does not support such a neat characterization of early common law. See, e.g., LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 299-302 (2d ed. 1985); G. EDWARD WHITE, TORT LAW IN AMERICA 13-15 (1980); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717, 1722-34 (1981).
255. See Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951). Civil liability in the common law was originally based on a fairly simple concept - trespass. The King's Court in early England issued the writ of trespass to any litigant who could show that he had sustained a physical contact on his person or property, due to the activity of another. . . . [I]t should be noted that this ancient concept of trespass had reference to any contact achieved as the consequence of one's conduct against the interest of another, no matter under what circumstances it occurred, as long as the defendant's causative conduct was his voluntary act. Id. at 361-62; see also MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 70 (1977) ("Under traditional legal doctrine, trespasses or nuisances to land could not be justified by the social utility of the actor's conduct nor could the absence of negligence serve as a limitation on legal liability for injury to person or property."); John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 315, 316 (1894) (arguing that early tort law was "indiscriminate" in that it did not distinguish between acts that were intentional and acts that were accidental). The conventional wisdom has been attacked in recent years by suggestions that the historical record does not support such a neat characterization of early common law. See, e.g., LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 299-302 (2d ed. 1985); G. EDWARD WHITE, TORT LAW IN AMERICA 13-15 (1980); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717, 1722-34 (1981).
256. See Thorns Case, Y.B. 6 Edw. 4, fo. 7, Mich., pl. 18 (1466), reprinted in RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 94 (6th ed. 1995). Justice Littleton stated, "If a man suffers damage, it is right that he be recompensed . . . for if your cattle come on to my land and eat my grass, notwithstanding you come freshly and drive them out, it is proper for you to make amends for what your cattle have done . . . ." Id., reprinted in RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 94, 96 (6th ed. 1995).
257. See Thorns Case, Y.B. 6 Edw. 4, fo. 7, Mich., pl. 18 (1466), reprinted in RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 94 (6th ed. 1995). Justice Littleton stated, "If a man suffers damage, it is right that he be recompensed . . . for if your cattle come on to my land and eat my grass, notwithstanding you come freshly and drive them out, it is proper for you to make amends for what your cattle have done . . . ." Id., reprinted in RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 94, 96 (6th ed. 1995).
258. See Thorns Case, Y.B. 6 Edw. 4, fo. 7, Mich., pl. 18 (1466), reprinted in RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 94 (6th ed. 1995). Justice Littleton stated, "If a man suffers damage, it is right that he be recompensed . . . for if your cattle come on to my land and eat my grass, notwithstanding you come freshly and drive them out, it is proper for you to make amends for what your cattle have done . . . ." Id., reprinted in RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 94, 96 (6th ed. 1995).
259. See id., reprinted in RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 94, 96 (6th ed. 1995). Chief Justice Choke stated: [W]hen the principal thing is not lawful, then the thing which depends upon it is not lawful. For when he cut the thorns and they fell on to my land, this falling was not lawful, and then his coming to take them away was not lawful. . . . [B]ut he should have said that he could not do it in any other manner or that he did all that was in his power to keep them out . . . . And, Sir, if the thorns or a great tree had fallen on his land by the blowing of the wind, in this case he might have come on to the land to take them, since the falling had then been not his act, but that of the wind. Id.; see also Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616). The court set forth several exceptions to the rule of strict liability: As if a man by force take my hand and strike you, or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging, or had set forth the case with the circumstances, so as it had appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt. Id. at 284. "Negligence" no doubt carried a different meaning, and more likely referred to something more akin to an "inevitable" accident. For a recent description of Weaver v. Ward, see generally Gary T. Schwartz, Weaver v. Ward, 74 TEX. L. REV. 1271 (1996) (forwarding Weaver v. Ward for "favorite case" in the Favorite Case Symposium).
260. See id., reprinted in RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 94, 96 (6th ed. 1995). Chief Justice Choke stated: [W]hen the principal thing is not lawful, then the thing which depends upon it is not lawful. For when he cut the thorns and they fell on to my land, this falling was not lawful, and then his coming to take them away was not lawful. . . . [B]ut he should have said that he could not do it in any other manner or that he did all that was in his power to keep them out . . . . And, Sir, if the thorns or a great tree had fallen on his land by the blowing of the wind, in this case he might have come on to the land to take them, since the falling had then been not his act, but that of the wind. Id.; see also Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616). The court set forth several exceptions to the rule of strict liability: As if a man by force take my hand and strike you, or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging, or had set forth the case with the circumstances, so as it had appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt. Id. at 284. "Negligence" no doubt carried a different meaning, and more likely referred to something more akin to an "inevitable" accident. For a recent description of Weaver v. Ward, see generally Gary T. Schwartz, Weaver v. Ward, 74 TEX. L. REV. 1271 (1996) (forwarding Weaver v. Ward for "favorite case" in the Favorite Case Symposium).
261. See id., reprinted in RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 94, 96 (6th ed. 1995). Chief Justice Choke stated: [W]hen the principal thing is not lawful, then the thing which depends upon it is not lawful. For when he cut the thorns and they fell on to my land, this falling was not lawful, and then his coming to take them away was not lawful. . . . [B]ut he should have said that he could not do it in any other manner or that he did all that was in his power to keep them out . . . . And, Sir, if the thorns or a great tree had fallen on his land by the blowing of the wind, in this case he might have come on to the land to take them, since the falling had then been not his act, but that of the wind. Id.; see also Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616). The court set forth several exceptions to the rule of strict liability: As if a man by force take my hand and strike you, or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging, or had set forth the case with the circumstances, so as it had appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt. Id. at 284. "Negligence" no doubt carried a different meaning, and more likely referred to something more akin to an "inevitable" accident. For a recent description of Weaver v. Ward, see generally Gary T. Schwartz, Weaver v. Ward, 74 TEX. L. REV. 1271 (1996) (forwarding Weaver v. Ward for "favorite case" in the Favorite Case Symposium).
262. By the early part of the nineteenth century, the old view of action went into decline. With the growth of industry, and particularly the construction of large factories to produce goods and railroads to carry raw materials and manufactured goods, some amount of harm came to be viewed as an inevitable, and indeed necessary, part of daily life. More to the point, the action that produced the goods, and made them available to the public, was viewed as a good thing rather than something people undertook at their peril. The growth of large cities and the complex social interactions they required of all inhabitants were considered a social good that benefited all, and with which the law should not interfere. See, e.g., Losee v. Buchanan, 51 N.Y. 476, 484-85 (1873). Action, indeed, is progress. To adhere to a rule that made one liable without fault for harms caused in the development of one's land "would impose a penalty upon efforts, made in a reasonable, skilful, and careful manner, to rise above a condition of barbarism." Brown v. Collins, 53 N.H. 442, 448 (1873). Some American historians have asserted that nineteenth century tort rules were in fact designed to assist emerging industries by limiting the situations in which industries would be held responsible. Morton Horwitz wrote: [S]ince many schemes of economic improvement had the inevitable effect of directly injuring or indirectly reducing the value of portions of neighboring land, common-law doctrines appeared to present a major cost barrier to social change. . . . In short, there existed a major incentive for courts not only to change the theory of legal liability but also to reconsider the nature of legal injury. In an underdeveloped nation with little surplus capital, elimination or reduction of damage judgments created a new source of forced investment, as landowners whose property values were impaired without compensation in effect were compelled to underwrite a portion of economic development. HORWITZ, supra note 171, at 70. However, the view that nineteenth century courts invoked the negligence principle as a subsidy to developing industry has been challenged. See generally Schwartz, supra note 171.
263. By the early part of the nineteenth century, the old view of action went into decline. With the growth of industry, and particularly the construction of large factories to produce goods and railroads to carry raw materials and manufactured goods, some amount of harm came to be viewed as an inevitable, and indeed necessary, part of daily life. More to the point, the action that produced the goods, and made them available to the public, was viewed as a good thing rather than something people undertook at their peril. The growth of large cities and the complex social interactions they required of all inhabitants were considered a social good that benefited all, and with which the law should not interfere. See, e.g., Losee v. Buchanan, 51 N.Y. 476, 484-85 (1873). Action, indeed, is progress. To adhere to a rule that made one liable without fault for harms caused in the development of one's land "would impose a penalty upon efforts, made in a reasonable, skilful, and careful manner, to rise above a condition of barbarism." Brown v. Collins, 53 N.H. 442, 448 (1873). Some American historians have asserted that nineteenth century tort rules were in fact designed to assist emerging industries by limiting the situations in which industries would be held responsible. Morton Horwitz wrote: [S]ince many schemes of economic improvement had the inevitable effect of directly injuring or indirectly reducing the value of portions of neighboring land, common-law doctrines appeared to present a major cost barrier to social change. . . . In short, there existed a major incentive for courts not only to change the theory of legal liability but also to reconsider the nature of legal injury. In an underdeveloped nation with little surplus capital, elimination or reduction of damage judgments created a new source of forced investment, as landowners whose property values were impaired without compensation in effect were compelled to underwrite a portion of economic development. HORWITZ, supra note 171, at 70. However, the view that nineteenth century courts invoked the negligence principle as a subsidy to developing industry has been challenged. See generally Schwartz, supra note 171.
264. 132 Eng. Rep. 490 (C.P. 1837).
265. Id. at 492 (argument of defense counsel, R. V. Richards, in support of the rule).
266. Id. at 494 (opinion of Tindal, C.J.).
267. As Chief Justice Shaw of the Massachusetts Supreme Judicial Court wrote in the most celebrated case adopting this principle: [I]f both plaintiff and defendant at the time of the [accident] were using ordinary care, or if at that time the defendant was using ordinary care and the plaintiff was not, or if at that time, both the plaintiff and the defendant were not using ordinary care, then the plaintiff could not recover. . . . . . . [W]hat constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. Brown v. Kendall, 60 Mass. 292, 296 (1850).
268. HOLMES, supra note 84, at 85-87.
269. Prosser and Keeton state the matter as practically necessary: The whole theory of negligence presupposes some uniform standard of behavior. . . . The standard of conduct which the community demands must be an external and objective one, rather than the individual judgment, good or bad, of the particular actor; and it must be, so far as possible, the same for all persons, since the law can have no favorites. At the same time, it must make proper allowance for the risk apparent to the actor, for his capacity to meet it, and for the circumstances under which he must act. The courts have dealt with this very difficult problem by creating a fictitious person, who never has existed on land or sea: the "reasonable man of ordinary prudence." W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 32, at 173-74 (5th. ed. 1984) (footnotes omitted); see also RESTATEMENT (SECOND) OF TORTS § 283 (1965) ("Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.").
270. Strict liability for accidental harm is limited to certain classes of cases, including some products-liability actions. See infra notes 183-86 and accompanying text.
271. One of the rare situations in which tort law requires proof of such a state of mind concerns the award of punitive damages. According to the Restatement, such damages "may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." RESTATEMENT (SECOND) OF TORTS § 908(2); see also CAL. CIV. CODE § 3294(a) (West 1997): In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
272. See RESTATEMENT (SECOND) OF TORTS § 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.").
273. See id. § 402A.
274. By the same token, evidence of actual negligence by the manufacturer, if available, adds nothing to plaintiff's case that plaintiff cannot achieve through a strict-liability claim. Only if the plaintiff can demonstrate the kind of indifference or wilfulness that traditionally enables the plaintiff to recover punitive damages will the defendant's state of mind or moral shortcomings matter.
275. See RESTATEMENT (SECOND) OF TORTS § 519.
276. 50 N.W. 403 (Wis. 1891). For a discussion of the importance of this case on its centennial, see Zigurds L. Zile, Vosburg v. Putney: A Centennial Story, 1992 WIS. L. REV. 877.
277. See Vosburg, 50 N.W. at 403. Apparently, defendant kicked plaintiff close to the site of a preexisting injury that had not completely healed. See id.
278. Id.
279. Id. at 403-04.
280. See KEETON ET AL., supra note 180, § 8, at 36 ("The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm.") (footnote omitted).
281. As the language quoted above suggests, this does not mean intention to do harm would be irrelevant if, for example, plaintiff sought to prove malice as a prerequisite to an award of punitive damages. But the tort of battery, and the award of compensatory damages for its commission, does not require a showing of intention to harm.
282. Prosser and Keeton explain that the requisite intent for battery is: an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiff's own good. KEETON ET AL., supra note 180, § 8, at 36-37 (footnotes omitted).
283. The Restatement defines "intent" to mean "that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it." RESTATEMENT (SECOND) OF TORTS § 8A (1965). The term "consequences" in the context of battery refers to the touching, not to harm from the touching.
284. KEETON ET AL., supra note 180, § 8, at 35.
285. There are some narrow situations in which the tort law employs a somewhat more specific definition of intent. For example, the Restatement requires that to be liable for the intentional infliction of emotional distress, the plaintiff must prove that the defendant "by extreme and outrageous conduct intentionally or recklessly cause[d] severe emotional distress." RESTATEMENT (SECOND) OF TORTS § 46 (emphasis added). The drafters explain that the rule applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly, . . . in deliberate disregard of a high degree of probability that the emotional distress will follow. Id. § 46 cmt. i. Thus, for this tort at least, the intent must be more specific. Not only must defendant intentionally engage in the conduct that causes the required harm, but the defendant must intend that harm to occur. In most situations, however, such specific intent is not required in tort law.
286. A discussion concerning the characterization of intent in criminal law is drawn from Samuel H. Pillsbury, Crimes of Indifference, 49 RUTGERS L. REV. 105 (1996).
287. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 198-99 (University of Chicago Press 1979) (1769).
288. 3 JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 74 (London, MacMillan 1883) (quoting Sir Michael Foster).
289. 58 Pa. 9 (1868).
290. Id. at 15. One can find similar expressions even in more recent cases. In Jenkins v. State, 230 A.2d 262, 266 (Del. 1967), for example, the court spoke of "cruel and wicked indifference to human life," and in People v. Love, 168 Cal. Rptr. 407, 411 (Ct. App. 1980), the court used the phrase "element of viciousness - an extreme indifference to the value of human life."
291. See Hyam v. Director of Public Prosecutions, 2 All E.R. 41, 42 (H.L. 1974).
292. MODEL PENAL CODE §§ 2.02(2)(c), 210.1, 210.2(1)(b) (Proposed Official Draft 1962).
293. See Pillsbury, supra note 197, at 116-19.
294. 1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 3.5, at 303 (1986).
295. See id.
296. See id.
297. See id.
298. See supra notes 187-96 and accompanying text.
299. See MODEL PENAL CODE § 2.02(2) (Proposed Official Draft 1962).
300. See 1 LAFAVE & SCOTT, supra note 205, § 3.5, at 306.
301. See 2 id. § 7.15, at 303-04. 213. See id. § 7.15, at 305-06.
302. See id. § 7.15, at 306-07. It is safe to assume that this concept requires that defendant do the act intentionally.
303. Recall that defendant need not know the act is unlawful. It is sufficient that society deems the act unlawful. See supra note 196 and accompanying text.
304. See 1 LAFAVE & SCOTT, supra note 205, § 4.2, at 437-38.
305. See id. § 4.3, at 462-64.
306. Id. § 4.2, at 439; see ROYAL COMM'N ON CAPITAL PUNISHMENT, REPORT OF ROYAL COMM'N ON CAPITAL PUNISHMENT §§ 394-402 (1953); see also MODEL PENAL CODE § 4.01 cmt. 6 (Tentative Draft No. 4, 1955) (also taking the position that the psychopath differs from others only quantitatively and not qualitatively).
307. Samuel H. Pillsbury, Evil and the Law of Murder, 24 U.C. DAVIS L. REV. 437, 477 (1990) (footnote omitted).
308. Id. at 479.
309. See 1 LAFAVE & SCOTT, supra note 205, § 4.2, at 439-40.
310. See MODEL PENAL CODE § 4.01 cmt. 6 (Tentative Draft No. 4, 1955).
311. Consider, for example, the federal Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified in scattered sections of 16, 18, 21, 28, and 42 U.S.C.). This crime legislation made dozens of federal crimes subject to capital punishment. The death penalty in the United States has been called "a political ping-pong ball." Alex Kozinski & Sean Gallagher, Death: The ultimate Run-On Sentence, 46 CASE W. RES. L. REV. 1, 5 n. 17 (1995).
312. One of the more notorious examples of implementation of primitive conditions can be found in Maricopa County, Arizona, where Sheriff Joseph Arpaio has instituted chain gangs, built a jail out of tents, required inmates to wear pink underwear, and taken other steps that degrade and humiliate inmates. See Report Harshly Criticizes Tough Arizona Sheriff, STATE J.-REG. (Springfield, Ill.), Jan. 11, 1998, at 2, available in 1998 WL 5552553; David Schwartz, Amnesty Group Takes Aim at Arizona Sheriff's Jails, DALLAS MORNING NEWS, Jan. 18, 1998, at 45A, available in 1998 WL 2506156; Sheriff Joseph Arpaio Creates "Affordable Housing" in the Land of the Sun (last modified Nov. 21, 1996) 〈http://www.ncn.com/∼snews/arpaio/sheriff.htm〉.
313. One of the more notorious examples of implementation of primitive conditions can be found in Maricopa County, Arizona, where Sheriff Joseph Arpaio has instituted chain gangs, built a jail out of tents, required inmates to wear pink underwear, and taken other steps that degrade and humiliate inmates. See Report Harshly Criticizes Tough Arizona Sheriff, STATE J.-REG. (Springfield, Ill.), Jan. 11, 1998, at 2, available in 1998 WL 5552553; David Schwartz, Amnesty Group Takes Aim at Arizona Sheriff's Jails, DALLAS MORNING NEWS, Jan. 18, 1998, at 45A, available in 1998 WL 2506156; Sheriff Joseph Arpaio Creates "Affordable Housing" in the Land of the Sun (last modified Nov. 21, 1996) 〈http://www.ncn.com/∼snews/arpaio/sheriff.htm〉.
314. One of the more notorious examples of implementation of primitive conditions can be found in Maricopa County, Arizona, where Sheriff Joseph Arpaio has instituted chain gangs, built a jail out of tents, required inmates to wear pink underwear, and taken other steps that degrade and humiliate inmates. See Report Harshly Criticizes Tough Arizona Sheriff, STATE J.-REG. (Springfield, Ill.), Jan. 11, 1998, at 2, available in 1998 WL 5552553; David Schwartz, Amnesty Group Takes Aim at Arizona Sheriff's Jails, DALLAS MORNING NEWS, Jan. 18, 1998, at 45A, available in 1998 WL 2506156; Sheriff Joseph Arpaio Creates "Affordable Housing" in the Land of the Sun (last modified Nov. 21, 1996) 〈http://www.ncn.com/∼snews/arpaio/sheriff.htm〉.
315. Chain gangs have recently been reintroduced in several states. See, e.g., Recent Legislation, 109 HARV. L. REV. 876 (1996) (discussing Act of June 15, 1995, ch. 283, 1995 Fla. Sess. Law Serv. 2649, 2650 (West), requiring Florida Department of Corrections "to implement a plan by December 1, 1995, for inmate labor wearing leg irons in chain-gang work groups"); see also Peter Morrison, The New Chain Gang, NAT'L L.J., Aug. 21, 1995, at A1; Brent Staples, The Chain Gang Show, N.Y. TIMES MAG., Sept. 17, 1995, at 62; Curtis Wilkie, Back on the Chain Gang - Amid Fanfare and Complaints, Alabama Puts Shackled Prisoners to Work, BOSTON GLOBE, May 4, 1995, at 1 (describing reintroduction of chain gangs in Alabama). One author has written that the "only purpose [of the chain gang] is degradation and humiliation of human beings for political points." Stephen B. Bright, The Electric Chair and the Chain Gang: Choices and Challenges for America's Future, 71 NOTRE DAME L. REV. 845, 847-48 (1996).
316. Chain gangs have recently been reintroduced in several states. See, e.g., Recent Legislation, 109 HARV. L. REV. 876 (1996) (discussing Act of June 15, 1995, ch. 283, 1995 Fla. Sess. Law Serv. 2649, 2650 (West), requiring Florida Department of Corrections "to implement a plan by December 1, 1995, for inmate labor wearing leg irons in chain-gang work groups"); see also Peter Morrison, The New Chain Gang, NAT'L L.J., Aug. 21, 1995, at A1; Brent Staples, The Chain Gang Show, N.Y. TIMES MAG., Sept. 17, 1995, at 62; Curtis Wilkie, Back on the Chain Gang - Amid Fanfare and Complaints, Alabama Puts Shackled Prisoners to Work, BOSTON GLOBE, May 4, 1995, at 1 (describing reintroduction of chain gangs in Alabama). One author has written that the "only purpose [of the chain gang] is degradation and humiliation of human beings for political points." Stephen B. Bright, The Electric Chair and the Chain Gang: Choices and Challenges for America's Future, 71 NOTRE DAME L. REV. 845, 847-48 (1996).
317. Chain gangs have recently been reintroduced in several states. See, e.g., Recent Legislation, 109 HARV. L. REV. 876 (1996) (discussing Act of June 15, 1995, ch. 283, 1995 Fla. Sess. Law Serv. 2649, 2650 (West), requiring Florida Department of Corrections "to implement a plan by December 1, 1995, for inmate labor wearing leg irons in chain-gang work groups"); see also Peter Morrison, The New Chain Gang, NAT'L L.J., Aug. 21, 1995, at A1; Brent Staples, The Chain Gang Show, N.Y. TIMES MAG., Sept. 17, 1995, at 62; Curtis Wilkie, Back on the Chain Gang - Amid Fanfare and Complaints, Alabama Puts Shackled Prisoners to Work, BOSTON GLOBE, May 4, 1995, at 1 (describing reintroduction of chain gangs in Alabama). One author has written that the "only purpose [of the chain gang] is degradation and humiliation of human beings for political points." Stephen B. Bright, The Electric Chair and the Chain Gang: Choices and Challenges for America's Future, 71 NOTRE DAME L. REV. 845, 847-48 (1996).
318. Chain gangs have recently been reintroduced in several states. See, e.g., Recent Legislation, 109 HARV. L. REV. 876 (1996) (discussing Act of June 15, 1995, ch. 283, 1995 Fla. Sess. Law Serv. 2649, 2650 (West), requiring Florida Department of Corrections "to implement a plan by December 1, 1995, for inmate labor wearing leg irons in chain-gang work groups"); see also Peter Morrison, The New Chain Gang, NAT'L L.J., Aug. 21, 1995, at A1; Brent Staples, The Chain Gang Show, N.Y. TIMES MAG., Sept. 17, 1995, at 62; Curtis Wilkie, Back on the Chain Gang - Amid Fanfare and Complaints, Alabama Puts Shackled Prisoners to Work, BOSTON GLOBE, May 4, 1995, at 1 (describing reintroduction of chain gangs in Alabama). One author has written that the "only purpose [of the chain gang] is degradation and humiliation of human beings for political points." Stephen B. Bright, The Electric Chair and the Chain Gang: Choices and Challenges for America's Future, 71 NOTRE DAME L. REV. 845, 847-48 (1996).
319. Chain gangs have recently been reintroduced in several states. See, e.g., Recent Legislation, 109 HARV. L. REV. 876 (1996) (discussing Act of June 15, 1995, ch. 283, 1995 Fla. Sess. Law Serv. 2649, 2650 (West), requiring Florida Department of Corrections "to implement a plan by December 1, 1995, for inmate labor wearing leg irons in chain-gang work groups"); see also Peter Morrison, The New Chain Gang, NAT'L L.J., Aug. 21, 1995, at A1; Brent Staples, The Chain Gang Show, N.Y. TIMES MAG., Sept. 17, 1995, at 62; Curtis Wilkie, Back on the Chain Gang - Amid Fanfare and Complaints, Alabama Puts Shackled Prisoners to Work, BOSTON GLOBE, May 4, 1995, at 1 (describing reintroduction of chain gangs in Alabama). One author has written that the "only purpose [of the chain gang] is degradation and humiliation of human beings for political points." Stephen B. Bright, The Electric Chair and the Chain Gang: Choices and Challenges for America's Future, 71 NOTRE DAME L. REV. 845, 847-48 (1996).
320. See, e.g., Violent Crime Control and Law Enforcement Act, 108 Stat. 1796; CAL. PENAL CODE § 1170.12 (West Supp. 1998); 730 ILL. COMP. STAT. ANN. 5/5-8-1 (West Supp. 1998). One author reports that at least 47 states have now enacted legislation providing enhanced penalties for repeat offenders. See Meredith McClain, Note, "Three Strikes and You're Out": The Solution to the Repeat Offender Problem?, 20 SETON HALL LEGIS. J. 97, 100 & n.15 (1996).
321. Washington's law, for example, requires a minimum sentence of 10 years in prison for any person convicted of a second felony, a third misdemeanor, or a third petit larceny. See WASH. REV. CODE ANN. § 9.92.090 (West 1998). In the case of a third felony, fifth misdemeanor, or fifth petit larceny, the law requires life imprisonment. See id. California's law is stricter still, requiring a person convicted of a second felony to serve a sentence double the length of one that would be served for the same offense by a first offender. See CAL. PENAL CODE § 667(e)(1) (West Supp. 1998). Persons convicted of a third violent felony are to be sentenced to 25 years imprisonment, or three times the sentence of a first offender, whichever is greater. See id. § 667.5. The same applies to persons convicted of a third serious felony. See id. § 1192.7. In one notorious case, a man with prior felony convictions including robbery, attempted robbery, drug possession, and unauthorized use of a vehicle was sentenced to 25 years to life imprisonment when convicted of stealing a slice of pizza. See 25 Years for a Slice of Pizza, N.Y. TIMES, Mar. 5, 1995, § 1, at 21.
322. See FED. R. EVID. 413-15.
323. See, e.g., CAL. EVID. CODE § 1108 (West Supp. 1998) (allowing evidence of similar offenses in prosecutions for sexual offenses if probative value of evidence is not substantially outweighed by danger of unfair prejudice); IND. CODE ANN. § 35-37-4-15 (West 1998) (allowing similar-crimes evidence in prosecutions for child molestation and incest if probative value of evidence is not substantially outweighed by danger of unfair prejudice); MO. ANN. STAT. § 566.025 (West Supp. 1998) (allowing evidence of other crimes against minors to show propensity to commit such crimes).
324. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
325. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
326. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics
327. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
328. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
329. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
330. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
331. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
332. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
333. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
334. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
335. Most crime, particularly violent crime, has been declining for the past four years. The F.B.I.'s Uniform Crime Reports for 1995 show that overall violent crime declined by 5% from the previous year. The murder rate was down by 12%, and the number of reported rape cases declined by 7% from the previous year. In fact, the F.B.I. statistics show declines for almost all types of crime. See Patricia O'Donnell Brummett, Despite the Figures, Crime Is a Big Problem, L.A. DAILY NEWS, June 2, 1995, at V1; Michael Shanahan, Crime Rates Are Down, Americans Still Fearful, PLAIN DEALER (Cleveland), June 30, 1996, at 26A. The F.B.I. data, compiled from local police reports, indicated that the juvenile-crime rate was also down. In 1995 the national rate for violent crime among juvenile offenders declined 2.9%. The decline in murders was particularly steep, dropping 15.2% from the previous year, and 22.8% since 1993. See Fox Butterfield, Juvenile Violent Crime Rate Dips, L.A. DAILY NEWS, Aug. 9, 1996, at N1. The drop in crime is nationwide, with the most significant reductions noted in the largest cities. See John Marzulli & Bob Liff, Major Crime Drops 11%; Homicide Rate Near 28-Year Low, N.Y. DAILY NEWS, June 19, 1996, at 5; Statistics Indicate Crime Is Down in New York; Residents Are Hopeful, but Not Sure of Change, ARIZ. REPUBLIC, May 25, 1996, at A35 [hereinafter Statistics Indicate]. For example, in New York City, the homicide rate dropped 25% in 1995, and was at a 28-year low by the first six months of 1996. Likewise, new Justice Department statistics show a 16% decline in crime in cities along the United States-Mexico border (San Diego, Nogales, El Paso, and Brownsville). See Mary Beth Alexander, Crime Rate in State Hits 25-Year Low, L.A. DAILY NEWS, July 2, 1996, at N3; John M. Broder & Tony Perry, Clinton Takes Credit for Crime Drop at Border, L.A. TIMES, June 11, 1996, at A3; Dan Lungren, Editorial, Turning the Tide: Falling Crime Rates Signal Heartening Trends, SAN DIEGO UNION-TRIB., May 19, 1996, at G1, available in 1996 WL 2159983. Notwithstanding the favorable numbers, residents of large cities and small towns alike continue to view crime as an overwhelming problem. Some experts attribute this to the fact that there is a considerable amount of crime in the United States as compared to other industrial countries. The media may also play a role in undermining people's confidence in the declining crime rate. Media exaggeration via television coverage of the most grisly crimes, and tabloid shows that dramatize violence, leave the average person with a sense that random violence can happen to anyone, anywhere. See All Things Considered: Citizens Feel Uneasy Despite Drop in Crime Rate (NPR broadcast, May 6, 1996) (transcript available in 1996 WL 4370425); Brummett, supra, at V1; Shanahan, supra, at 26A; Statistics Indicate, supra, at A35.
336. Fear Persists in Wake of Falling Crime Rates; High-Profile Cases Shouldn't Obscure Hard-Won Progress, L.A. TIMES, June 9, 1996, at B17.
337. "It is the shock value of certain crimes, and the inexplicable nature of others . . . [that] leaves people with a palpable sense of unease regarding their safety." Id.
338. The assumption, of course, is that in former times, Americans of diverse backgrounds did share common values. As the Civil War and other events during the last two centuries demonstrate, that proposition is highly dubious.
339. Arguably, calls for elimination of affirmative action programs also result from a fear of difference. See, for example, Proposition 209, the "California Civil Rights Initiative," a ballot proposition in November 1996 which, as codified in California's state constitution, provides: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." CAL. CONST. art. I, § 31 (a). The initiative is intended to eliminate all forms of affirmative action in the public realm.
340. Or, for that matter, as an invitation to the jury to disregard the facts of the case at hand and convict solely on the basis of bad character.