1 Criminal Record, Character Evidence, and The Criminal Trial

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CRIMINAL RECORD, CHARACTER
EVIDENCE, AND THE CRIMINAL
TRIAL
Richard L. Lippke
Department of Criminal Justice, Indiana University
The question addressed here is whether evidence concerning defendants past crim-
inal records should be introduced at their trials because such evidence reveals their
character and thus reveals whether they are the kinds of persons likely to have com-
mitted the crimes with which they are currently charged. I strongly caution against the
introduction of such evidence for a number of reasons. First, the link between defen-
dants past criminal records and claims about their standing dispositions to think and
act is tenuous, at best. Second, noncharacter, or trace, evidence should have primacy
in determining the guilt or innocence of defendants. Third, character evidence will
vary in its freshness and specicity. Other things being equal, only relatively fresh
and specic character evidence has probative value. Moreover, such evidence will
have greater probative value in criminal cases where the issue before the court is
whether a crime has been committed than in cases where the issue is whether it was
the defendant who committed the crime. Finally, we might be more sanguine about
the introduction of fresh and specic character evidence under conditions likely to
work against its misuse or misinterpretation. However, the relevant conditions may
not often be satised in the real world of criminal trials and defendants.
It might seem a truism to say that individuals should have their guilt or
innocence at trial determined by evidence related to the current charges
against them rather than by evidence of real or alleged past misconduct for
which they are not on trial. Criminal defendants are not to be found guilty
and punished by the state because they have checkered pasts. Indeed, the
exclusion of so-called character evidence under United States Federal Rule
of Evidence 404 appears to give ofcial imprimatur to the notion that the
focus of criminal trials is to be on the current charges and the evidence for
them.
1
Bad people may or may not ultimately get what they deserve for the
I am grateful to two anonymous reviewers for their very helpful comments on earlier drafts
of this paper.
1. The rule states: Evidence of a persons character of a trait of his character is not admissible
for the purpose of proving that he acted in conformity therewith on a particular occasion;
FED. R. EVID. 404. See also United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980), where the court
wrote: It is fundamental to American jurisprudence that a defendant must be tried for what
he did, not for who his is.
167
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168 RICHARD L. LIPPKE
lives they have led, but judges or juries are not to decide the fate of criminal
defendants based on evidence about the kinds of people they are.
As anyone familiar with the entire array of rules relating to character ev-
idence knows, the criminal law is hardly clear or consistent in its exclusion
of such evidence from criminal trials. Defendants can call witnesses to attest
to their good character (though if they choose to do so, prosecutors can
then challenge that evidence). As Larry Laudan has recently argued, it is
not apparent how this asymmetry in the admissibility of character evidence
makes any sense.
2
If evidence of good character is admissible, it must be be-
cause it is believed to show that defendants are unlikely to have committed
the crimes with which they are charged. Yet why, then, should not evidence
of bad character likewise be admissible, whether the defense introduces
good character evidence or not? Do not long criminal histories provide at
least some evidence that defendants are more likely than not to be guilty
of the current charges against them?
3
Moreover, evidence of past miscon-
duct is admissible into criminal trials in other ways. Prosecution or defense
witnesses can have their testimony impeached by evidence of their past dis-
honesty or suspect motivations in testifying. Furthermore, the criminal law
permits the introductionof evidence concerning a defendants past conduct
to help demonstrate specic elements of an alleged current crimea modus
operandi, knowledge of how to perform illegal acts (e.g., cracking safes), or
a motive for the crime with which the defendant is charged, among others.
4
There are quite powerful reasons to worry about how evidence of defen-
dants past misconduct affects the outcomes of their trials, especially when
such evidence consists of their criminal records. Two grounds for concern
stand out. First, juries (or judges, in the case of bench trials) might too
quickly or easily infer the guilt of defendants on the current charges if
the past criminal histories of those same defendants are revealed to them.
5
Second, once they are apprised of defendants past misdeeds, juries might
nd them guilty regardless of the evidence supporting the charges, on the
grounds that defendants with sordid pasts deserve (more) punishment.
6
2. LARRY LAUDAN, TRUTH, ERROR, ANDCRIMINAL LAW: ANESSAY INLEGAL EPISTEMOLOGY 138139
(2006).
3. Recent revisions allow the introduction of evidence of specic past misconduct in cases
involving sexual misconduct or child molestation. See FED. R. EVID. 413415.
4. FED. R. EVID. 404(b) allows evidence of past crimes for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. Richard Uviller employs the acronym KIPPOMIA to refer to these exceptions. See
R. Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130
U. PA. L. REV. 845891 (1982), at 877.
5. Those who discuss the cognitive errors jurors might be inclined to commit with regard
to such evidence include Chris William Sanchirico, Character Evidence and the Object of Trial,
101 COLUM. L. REV. 12271311 (2001), at 12421246; Peter Tillers, What Is Wrong with Character
Evidence?, 49 HASTINGS L.J. 781834 (1998), at 793; Roger C. Park, Character at the Crossroads, 49
HASTINGS L.J. 717779 (1998), at 73841; and A.E. Acorn, Similar Fact Evidence and the Principle
of Inductive Reasoning: Makin Sense, 11 OXFORD J. LEGAL STUD. 6391 (1991), at 68.
6. This is often referred to in the scholarly literature as jury nullication. See, among
others, Sanchirico, supra note 5, at 12461248.
Criminal Record, Character Evidence, and The Criminal Trial 169
Still, we might wonder why those who render verdicts in criminal trials
(I shall hereafter assume that this will typically be juries, though the pos-
sibility of bench trials should be borne in mind by the reader) could not
be strongly cautioned against such dubious lines of reasoning or, indeed,
whether they are all that susceptible to them. Laudan suggests that jurors
might well be capable of separating past fromcurrent guilt, and other schol-
ars argue that the mistaken inferences jurors might make based on evidence
of past misconduct are no different in kind from many others they might
make but which we assume (or hope) that they will not make.
7
My main focus in the discussion that follows is on the admissibility of a
defendants past criminal record in the course of a trial for the purpose
of establishing claims about her character. I do not support the categorical
exclusion of such evidence, though I contend that we must be wary of
it and cautious in permitting its introduction. We should recognize that
a defendants past criminal record may tell us little about her character.
Where a defendants past criminal record does provide credible evidence
about her character, it may tell us something about only a slice or segment
of her character. Though there may be cases in which we have credible
evidence about a defendants character that is undeniably relevant to the
kind of crime with which she is currently charged, in determining the
admissibility and probative value of such evidence, we should distinguish
two broad types of criminal cases. In the rst type of case, the judge or jury
must decide whether a crime was committed. For instance, in certain kinds
of white-collar crime cases, whether defendants are guilty of fraud might
depend solely on their intentions in acting in certain ways. In such cases,
there will be no other suspects who could instead be found guilty of the
fraudulent activity. In the second kind of case, the issue before the court is
whether it was the defendant who committed the crime, not whether a crime
was committed. Credible character evidence may have probative value in
both kinds of casesespecially if it is specic and not stalethough
it will less often have it in the second type of case. In both types of cases,
noncharacter evidence, or what Richard Uviller terms trace evidence,
should have primacy and should be evaluated by the jury independently of
the character evidence.
8
In sorting through the various and complex issues raised by character
evidence, it is useful to distinguish what we might say about it under cer-
tain ideal conditionsones strongly conducive to jurors avoiding errors
in criminal trials (understood as nding either the innocent guilty or the
guilty innocent)from what we might say about that evidence given what
we know or reasonably believe about criminal investigations and trials in
the real world. It is one thing to believe that we might allow liberal use of
7. LAUDAN, supra note 2, at 139. On the other kinds of mistaken inferences jurors are prone
to, see Sanchirico, supra note 5, at 1245.
8. Uviller, supra note 4, at 847.
character evidence if jurors are armed with certain crucial distinctions re-
garding such evidence, understand and accept the presumption of inno-
cence owed to defendants, understand and are capable of applying what
Laudan terms the BARD(that is, beyond a reasonable doubt) standard, and
receive lots of help and guidance from judges and defense attorneys in in-
terpreting such evidence.
9
It is quite another to accept liberal rules relating
to character evidence if some or all of these conditions are not satised.
Some of the debate about character evidence can, I believe, be traced to
the failure to make this distinction. These are matters that I discuss in the
penultimate section. There I argue that various things we know or reason-
ably believe about criminal trials in the real world might make us reluctant
to allow the introduction of character evidence even if it is credible. Var-
ious reforms, if implemented, might ease our concerns without entirely
eliminating them.
I. GETTING CHARACTER EVIDENCE THROUGH THE
COURTROOM DOOR
It is tempting to give in to Laudans critique of current character evidence
rules, especially his attack on the asymmetry in those rules which allows the
defense to introduce evidence of the defendants good character but disal-
lows the prosecution doing so with regard to the defendants bad character,
except in rebuttal. If evidence of good character is relevant to, without
being dispositive of, our evaluation of peoples conduct, why should not
evidence of bad character be admissible?
10
But before we accept this, it is
important to get clearer on just what character is and what the various kinds
of evidence that might be introduced at a criminal trial reveal about it. It is
undeniable that we use character evidence in our everyday lives to predict
peoples behavior or interpret it when their motives or intentions are not
otherwise transparent. Yet the contexts in which we do so and the stakes
involved are often very different from those of a criminal trial. Moreover,
the kinds of evidence that we have of the character of individuals are often
superior to those juries are apt to have.
To begin with, we need some workable account of what character is,
for this will help us see how the debate about character evidence is, at
times, misleadingly cast. Joel Kupperman offers an account of character
according to which Xs character is Xs normal pattern of thought and
action, especially with respect to concerns and commitments in matters
affecting the happiness of others or of X, and most especially in relation
to moral choices.
11
Kupperman notes that by normal pattern, he means
what is normal for X in various circumstances, including unusual ones that
9. LAUDAN, supra note 2, at 30.
10. This is Laudans useful way of characterizing such evidence. See id. at 140.
11. JOEL KUPPERMAN, CHARACTER (1991), at 17.
might be regarded as moral test cases for X. There is an implication here
of considerable stability. In speaking about a persons character, we pick
out things about a person that are not momentary concerns but are instead
ones that bridge the present and other parts of a persons life and also
bridge thought and action.
12
This is not to say that character cannot
change over time. It can, and this fact will have some relevance to the use
of past criminal records in trials.
Consider also Christine McKinnons slightly different account: To talk
about a persons character is to talk about a complex of virtues and vices and
more ethically neutral skills, abilities, anddispositions she possesses as well as
to talk about the ways in which she values themand identies with themand
the roles she has constructed for them in her life.
13
McKinnons account,
like Kuppermans, emphasizes the way in which character unies a life,
because it involves a somewhat self-reective stance on ones dispositions
and their desirability. Thus, when we say that someone has good character,
we meanthat she not only stably possesses certainkinds of moral sensibilities
and skills that enable her to act well but also that she is committed to
developing and extending themand to pursuing aims and purposes that are
consistent with the dignity of others and proper concern for their welfare.
By contrast, when we say that someone has bad character, we mean that she
lacks crucial moral sensibilities and skills, has little interest in extending
them or eschews the value of doing so, and tends to pursue projects or aims
that show little regard for others dignity or welfare.
One thing that should be readily apparent fromthese accounts is just how
much we would need to know about a person in order to have something
approaching justied beliefs about his character. Though we can read a
good deal about a persons character from his actions, really knowing his
character requires delving beneath his surface conduct to get at his mo-
tives, concerns, ways of thinking, and attitudes toward himself and others.
Typically, we only come to know a persons character after spending con-
siderable time observing him in a variety of different contexts, talking with
him, or talking to others who have observed and interacted with him over
an extended period of time. Of course, we may quickly form provisional
judgments of character because we have to in order to interpret peoples
behavior or predict what they will do. But such provisional judgments are
properly subject to revision and renement in light of further observations
of or interactions with the individuals in question. Obviously, such revision
and renement can be an ongoing process.
In our everyday affairs, we employ character judgments of both provi-
sional and more fully evidenced kinds. But this may not tell us much about
whether doing so in the context of criminal trials is feasible or even advis-
able. For one thing, the evidence of a defendants character that juries are
12. Id. at 17.
13. CHRISTINE MCKINNON, CHARACTER, VIRTUE THEORIES, AND THE VICES (1999), at 71.
apt to see during a criminal trial is sometimes of dubious quality. This will
certainly be true for so-called reputational testimony, where witnesses
come before the court to state their views about a defendants perceived
standing in the community. As Uviller puts it, the witness most likely merely
projects his personal opinion into the hypothetical minds and conversations
of an ill-dened group of anonymous neighbors and associates.
14
How re-
liable such testimony will be is anyones guess, but there seems little reason
to believe that it will usually be based on a witnesss careful observation
of and interaction with the defendant in a variety of contexts over an ex-
tended period of time. If such testimony is supposed to help jurors decide
whether the defendant is the kind of person who would commit the crime
or crimes with which he is charged, it seems very weakly probative at best
and is properly subject to contestation.
What about character testimony offered by witnesses who are called upon
to give their personal opinion of a defendants character? Such testimony
might be more probative, depending on the extent and kind of interactions
the witness has had with the defendant as well as upon the witnesss skill at
observing and interpreting peoples behavior. In some cases, such testimony
might give us quite a bit of useful evidence about a persons character. Yet
what it will more often give us is evidence about certain limited patterns
of past conduct by the defendant. Indeed, these are the sorts of things wit-
nesses can probably be relied upon to attest tospecic instances in which
they have observed the defendant acting in certain ways in the past. If, for
instance, a defendant is charged with recklessly endangering the lives of
others in some specic type of context (e.g., while driving an automobile),
then having witnesses who testify to having observed the defendant behav-
ing in similar ways in similar contexts in the past seems probative. How
much it should be allowed to count toward establishing the guilt of defen-
dants BARD is a matter I return to below. The important point here is that
though such past misconduct may suggest something about the defendants
character, it would be hazardous, to say the least, to draw any broad or rm
conclusions about the defendants character from testimony about it.
It might be objected that particular bits of trace evidence will often be no
more than weakly probative, pointing toward the defendants guilt in only
a mildly probabilistic fashion. Yet they are offered up to the jury as part of
the prosecutions larger case against the defendant. The jury is expected to
sort through the various kinds of trace evidence proffered and arrive at a
conclusion about its overall strength. Why not allow marginally probative
character evidence to be introduced and evaluated by the jury as well,
especially if it is subject to vigorous challenge by defense attorneys? This
objection is well taken when reputational and personal opinion testimony
are at issue but should be resisted when it is a defendants criminal record
that the prosecution seeks to introduce. Why is this? In the rst place,
14. Uviller, supra note 4, at 885.
a persons past criminal record may not tell us much about his overall
character or even the more specic propensities of thought and action
that he currently possesses. As such, his criminal record will often be only
very weakly probative. In the second place, the likelihood that introduction
of a defendants past criminal record at his trial will bias the jurors against
him, independently of the relative strength of the trace evidence in the case,
distinguishes it fromreputational or personal opinion testimony. Possession
of a criminal record, especially one that is lengthy or violent, is highly
stigmatizing. Indeed, there is evidence conrming the tendency of jurors
more readily to convict defendants about whose criminal pasts they learn.
15
It therefore seems reasonable to exclude evidence of a defendants past
record unless it can be shown to provide specic evidence about his current
propensities.
We should be quite hesitant in making inferences from a defendants
criminal record to claims about her character. A persons past criminal
record does not speak for itself, especially insofar as it is consulted for
evidence about her character. Set to one side, for the moment, defendants
who have been wrongly convicted in the past or who have pled guilty to
crimes that they did not commit because offered attractive plea bargains
that they accepted because they did not want to risk conviction at trial, with
its typically harsher sanctions. Suppose that a defendant is guilty of all of
the crimes of which she has been convicted. Her record may still tell us little
about the circumstances of and motivations behind her offending. Did she
commit these crimes because she is self-centered and violent or because
she was addicted to drugs or desperately attempting to please a violent man
on whom she was economically or emotionally dependent? If a history of
criminal offending is to provide us with character evidence, then we must
ndout more about the origins of her conduct to discover what (if anything)
her record reveals about her normal patterns of thought and action. This
suggests that the courts wouldhave to take onthe costly andtime-consuming
tasks of nding out not just what defendants have done in the past but
why they have done itfor what purposes, in what contexts, and in what
ways. For it is only these details that reveal a defendants relatively stable
propensities for thought and action, her responsiveness (or lack thereof) to
moral considerations, and thus her degree of concern for the dignity and
welfare of herself and others.
Furthermore, a defendants past criminal record might be stale as an
indicator of her character. A series of convictions ve or ten years ago may
not tell us much about a defendants current propensities, at least on the
plausible assumption that people can gradually change and thus not be
the kinds of people they were at earlier junctures in their lives. Perhaps a
15. See Dennis J. Devine, Laura D. Clayton, Benjamin B. Dunford, Rasmy Seying & Jennifer
Pryce, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 PSYCHOL. PUB.
POLY & L. 622727 (2001), at 678.
defendants attorney can be trusted to raise such doubts and complexities,
but it is apparent that they should be raised.
Admittedly, there will be cases in which a defendants criminal record
does reveal things about his current character. A long, diverse, and violent
enough criminal history (one the validity of which is beyond reasonable
dispute) might give us quite a bit of useful evidence about a defendantin
particular, his relatively stable willingness to run roughshod over others
interests in the pursuit of his own. Such evidence might be bolstered by the
testimony of family members, friends, or victims of prior crimes who have
directly witnessed the defendants depravity in a wide variety of contexts.
Moreover, if a number of the convictions are quite recent, there will be
little reason to believe that the defendant has changed his stripes. Even
in such cases, however, we should be cautious about drawing sweeping
conclusions about a defendants character. We all know that humans are
complex creatures. Depraved killers are sometimes kind to their friends,
mothers, or pets. Hence a past criminal record is unlikely to provide us with
a complete or nuanced portrait of a defendants character. Instead, it might
give us useful information about only slices or segments of his character or
about specic propensities that he possesses.
Perhaps that is all we need, since it might plausibly be suggested that
what we are attempting to uncover with such evidence is whether defen-
dants are the kinds of persons likely to commit the crimes with which they
are charged, especially if given the opportunity to do so. Defendants past
criminal records might tell us this much, if not all that much about their
broader characters. True enough, though it is important to emphasize the
difference between more and less specic kinds of such evidence. It is one
thing if a past criminal record provides credible evidence that a defendant
is the kind of person likely to commit the specic type of crime with which
he is currently charged. It is quite another if a past criminal record provides
credible evidence that a defendant has more general criminal tendencies
that are less directly related to the specic crimes with which he is cur-
rently on trial. The rst kind of character evidence might be signicantly
probative and enough so to convince us to set aside our concerns that its
introduction will bias jurors against defendants so much that they will dis-
count or ignore the relevant trace evidence. The second kind of character
evidence is more problematic, and not just because people can act contrary
to their tendencies or because such tendencies must not be permitted to
overshadow the trace evidence of guilt. A tendency to commit one type of
crime may reveal little about the tendency to commit other types. True, the
evidence we have from recidivism studies suggests that many offenders are
generalists when it comes to committing crimes.
16
Most do not specialize.
But it would be hazardous, to say the least, to infer present guilt with regard
16. See, e.g., David P. Farrington, Human Development and Criminal Careers, in THE OXFORD
HANDBOOK OF CRIMINOLOGY 361408 (M. Maguire, R. Morgan & R. Reiner eds., 1997), at 380.
to one alleged type of offense from a past record of other kinds of offenses.
Hence I would disallow the introduction of a past record that is unrelated to
the current charges. Such evidence is not probative enough to warrant our
taking the chance that its introduction will overshadow the trace evidence
of a defendants guilt in jurors minds.
Notice that it is the specicity of certain kinds of past-conduct evidence
that explains its undisputed probative value in criminal cases. As already
noted, evidence rules permit the prosecution to introduce evidence of a
defendants past misconduct: a modus operandi used by the defendant in the
past for which there is trace evidence in the current case; evidence that
the defendant had a motive to commit the crime with which he is currently
charged; or evidence (suchas a past convictionfor the same offense) that the
defendant knows how to commit a specic kind of offense with which he is
currently charged (e.g., pickpocketing), especially if the defendant actively
disputes this contention. Such past-conduct evidence is specic in the
sense that it establishes an element of the current charges (e.g., knowledge
of how to commit the crime in question), or corresponds with an element
of the current charges (e.g., a modus operandi) or an overall crime pattern
exhibited in the current charges, or rebuts all or some part of a defense
offered by a defendant. A.E. Acorn argues that many of the more specic
kinds of past-conduct evidence are probative precisely because they do not
ask juries to reason from broad and somewhat dubious generalizations
about people (e.g., people who have past criminal records are bad people
and thus likely to be guilty of the current charges against them).
17
Instead
they invite juries to reason from more specic types of generalizations (e.g.,
people who have been repeatedly convicted of crimes involving a specic
modus operandi, which is also present in the current case, are more likely
to be guilty of the current charges). Hence such past-conduct evidence is
not employed by the prosecution to implicate the defendant based on his
bad character. Indeed, such evidence does not tell us much at all about the
defendants character so much as provide or sustain trace evidence.
18
Assuming that certain kinds of character evidence are deemed probative
enough to rebut the presumption against allowing defendants criminal
records to be introduced into a trial, there should be some procedure for
determining when doing so is to be permitted. It seems that the burden of
establishing the freshness, reliability, and specicity of the evidence should
be on the prosecution, and we might reasonably require the prosecution to
17. Acorn, supra note 5, at 73.
18. It might be objected that we can infer things about a persons character frompast-conduct
evidence, such as a modus operandi. For instance, suppose that a defendants past murders were
always meticulously and cruelly carried out. Can we not infer from such evidence that the
defendant is deliberate, careful, and sadistic? Perhaps we can, though the extent to which
such traits dominate his character, rather than being aberrations within it, probably cannot be
inferred. And in any case, again, it is not really his character that is probative, but the specic,
repeat ways he has acted, especially if these are replicated in the current offense with which
he is charged.
provide clear andconvincing evidence of this freshness, reliability, andspeci-
city to the presiding judge. Defense counsel should be allowed to challenge
the introduction of such evidence along any of the relevant dimensions, ar-
guing that it is dated, unreliable for indicating any sort of propensity of the
defendant, or not specic enough given the current charges and evidence
for them. Also, the decision by a judge to permit the introduction of a de-
fendants past criminal record should be a basis for subsequent appeal if
the defendant is convicted. Importantly, any hearing on the introduction
of such character evidence should be conducted away from the jury, so
that jurors do not get wind of the defendants past criminal record until
or unless its introduction into evidence is allowed by the judge.
19
If it is al-
lowed, defense counsel should be permitted to contest it vigorously, much
as they would any other evidence, and caution jurors about the inferences
to be drawn from it. Even this may not be enough for, as we see below,
jurors should evaluate the strength of the trace evidence independently of
probative character evidence against the defendant.
This procedure for introducing character evidence, as well as the rele-
vant criteria of freshness, specicity, and reliability, arguably should also be
employed when efforts are made to impeach witness testimony, especially
when the witness in question is the defendant herself. It should not be per-
missible for the prosecution to seek to impeach the defendants testimony
(and at the same time prejudice the jurors against her) by raising her past
criminal record should she choose to testify. Of course, if her past criminal
history includes one or more convictions for perjury, that might be deemed
sufciently probative by the judge to overcome the presumption against
introduction of her criminal record in response to her testimony. Similarly,
should she deny any motive to commit the crime in question or knowledge
of how to commit it, then evidence from her past criminal history might
be reliable, fresh, and specic enough to warrant a judges allowing it to
be introduced (subject, of course, to contestation by defense counsel). In-
deed, even in cases where the witness to be impeached is not the defendant
herself, I am not convinced that quite general and vague attacks on the
witnesss character, of the sort that derive from citing the witnesss criminal
record, should be permitted.
20
Nonetheless, I concede that such cases are
more complicated because the witness is not a criminal defendant whose
fate is in the jurys hands.
There are, no doubt, harder cases where the past-conduct evidence that
the prosecution seeks to introduce will not be so general as to utterly fail to
show the defendant to be the kind of person who might commit the crime
in question nor so specic as to establish an element of the current offense
or demonstrate a modus operandi or distinctive crime pattern. The number
19. Such sidebar conferences regarding disputed evidence are required by the law in other
contexts. See FED. R. EVID. 103104.
20. My views here are indebted to the discussion in Uviller, supra note 4, at 890.
of previous convictions a defendant has can vary, as can their temporal
distance from the present or extent to which they have elements that bear
on the current charges. Where to draw the line on the admissibility of
less reliable or specic past-conduct evidence is a difcult question. Under
ideal conditions, we might err on the side of allowing more rather than less
of it to come before judges or juries, with the reasonable hope that they
can properly sift through and weigh it. Under less-than-ideal conditions,
we might be more reluctant to trust those who must decide the fate of
defendants with less reliable or specic past-conduct evidence. I return to
these matters later in the discussion.
II. THE RELATIONSHIP BETWEEN TRACE AND CHARACTER
EVIDENCE
In this section, I argue that even if the courts do permit the introduction
of reliable, fresh, and specic character evidence regarding a defendant,
jurors should not be encouraged to rely on it very much in making decisions
about guilt or innocence. In other words, the admissibility of such evidence
should not be taken as anywhere near sufcient to establishing the truth
of the current charges against the defendant. Again, what such evidence
shows is that the defendant is the kind of person who is disposed to commit
the crime with which he is charged. It obviously does not show that he has
done so on the occasion in question. It is the trace evidence that can show
that, though I concede that character evidence might have a legitimate role
to play in supplementing the trace evidence in some instances.
It is vitally important to us to come to understand what makes others
tick, not only to predict their future behavior but also to gure out how to
approach and deal with them. Especially when our interpreting or predict-
ing others behavior has relatively low stakes, we seem justied in relying
on character evidence, even provisional character evidence. Yet notice how
things change when the stakes are higher. Suppose that ones supervisor has
beenaccused of the wrongful ring of a colleague. Suppose also that one has
credible evidence concerning the supervisors good character, evidence that
justiably leads one to believe that it is highly unlikely that he would engage
in misconduct of the sort in question. One has observed his conduct over a
long period of time in diverse situations. In addition, numerous conversa-
tions with him suggest that he is stably disposed to act conscientiously and
from the right sorts of reasons. Other colleagues whose judgment one be-
lieves is reliable have reached similar conclusions about his good character,
thus corroborating the character evidence one has. Nonetheless, given the
stakes inthe present case, the character evidence, credible as it may be, is not
at all decisive. If the allegations against the supervisor are serious enough
and the impact on affected parties signicant, then it seems reasonable, if
not mandatory, to insist upon a more formal inquiry into his conduct.
Arguably, in the course of such a formal inquiry, character evidence
should be temporarily bracketed, and the relevant trace evidence of his
conduct with regard to the matter in question should be given center stage.
The suggestion that strong evidence of his good character should be em-
ployed to examine and interpret the trace evidence in a light most favorable
to him should, it seems, be resisted. If we are to evaluate the trace evidence
impartially, we should be prepared to view it in ways that are both maximally
charitable and uncharitable to him. Only then will we be in a position to
draw reasonable conclusions about which interpretation of his conduct the
trace evidence best supports. Indeed, one of the reasons for bringing in
third parties to adjudicate such disputes is precisely that they are less likely
to have their evaluations of the evidence colored by what they know about
the accused. If the trace evidence of misconduct is of the right kind, even the
best character evidence may be rebutted. The explanation for this is the fa-
miliar one that people with good character can sometimes behave badly. At
most, credible evidence of the supervisors good character might come into
play if the trace evidence, evaluated from all sides, so to speak, is suggestive
of misconduct but not conclusive. At that point we might reasonably allow
in the character evidence to reach the conclusion that he likely did not en-
gage in the misconduct of which he is accused. Of course, if we lack credible
character evidence, our conclusion might have to be the more cautious one
that the case against him is unproven.
The supervisor case is one that falls into the rst category of cases that
I distinguish above, since the question it raises is whether the accused in-
dividual engaged in misconduct. There are no other suspects in the case,
in the sense of other individuals who might have wrongfully red the col-
league. Similarly, juries in criminal cases must sometimes decide whether
an accused person acted criminally, not whether he is the person who acted
criminally. We might refer to the former as identity cases, and the latter
as nonidentity cases.
21
To what extent or in what ways should credible
character evidence, assuming it is available, be deemed useful in deciding
the nonidentity cases?
The answer, it seems, depends on both the quality of the trace evidence
in the case and the relative specicity of the credible character evidence.
Suppose that a defendant is on trial for rape. His defense is that the com-
plainant consented to the sexual intercourse, a claim that she vehemently
and convincingly denies when put on the witness stand. Yet she was seen
kissing and hugging the defendant in public, and she admits to going to his
apartment willingly on the evening in question. For his part, the accused is
a quite credible witness on his own behalf when put on the stand. Suppose
that there is no evidence of a motive on the complainants part that would
21. D. Michael Risinger draws a similar distinction; see Risinger, Unsafe Verdicts: The Need for
Reformed Standards for the Trial and Review of Factual Innocence Claims, 41 HOUS. L. REV. 12811335
(2004), at 1310.
cast doubt on her version of events. Even if we think that woman should
be believed in such cases, that it is highly unlikely that they would go to
the trouble and potential embarrassment of publicly accusing someone of
raping them if it were not true, it is also true that the evidence, as described,
may not be BARD conclusive of the defendants guilt. Perhaps a prepon-
derance of the evidence (or PoE, to use Laudans acronym) supports a
conclusion that the defendant is guilty. In other words, there are more rea-
sons for judging him guilty than for judging him not guilty, or the reasons
for judging him guilty are stronger than those for judging him not guilty.
Or if the presumption that women generally do not formally accuse men of
rape and testify against them in a court of law unless they have been raped
is granted, we might conclude that there is clear and convincing evidence
(or CACE, to use Laudans acronym) of the defendants guilt in the case.
The CACE standard should be understood as saying that there are many
more or stronger reasons for judging him guilty than not. Still, the standard
of proof in criminal cases is higherclear and convincing evidence that
the defendant is guilty and rebuttal by the prosecution of any evidenced
alternative account of the incident in question according to which the de-
fendant should be judged not guilty.
22
There is, in the case as described, an
alternative explanation of the events according to which the defendant is
not guilty (namely, that the complainant consented to sexual intercourse),
though how well evidenced it is admittedly seems unclear.
Suppose, however, that the prosecution had and could introduce fresh,
reliable, and specic character evidence that the defendant is the kind of
person who commits violent sexual assaults against women, only to subse-
quently claim that they consented to the sexual intercourse.
23
Again, we
may not often have such evidence based on a defendants past criminal
record, but suppose, for the sake of argument, that we did in a given case. It
is hard to resist the contention that the jury should be given such evidence,
though they must be cautioned strongly about its use. True, such evidence
might lead them to leap too quickly to the conclusion that the defendant
is guilty. We would still want them to weigh it carefully against or beside the
trace evidence. But character evidence of the requisite kind does seem to
have probative value, perhaps enough to tip the scales so as to justify a
nding of guilt BARD against the accused, especially if the trace evidence
against him is clear and convincing or close to it.
Why is this? The answer, I believe, is that in the kind of case in question,
we are in effect asking the jury to decide whether the defendant acted in
character. We know, of course, that people sometimes act out of character
good people do things that they normally would not and bad people refrain
from misconduct that they would normally engage in. At the same time,
22. In suggesting this interpretation of BARD, I borrow from LAUDAN, supra note 2, at 8283,
and ALEX STEIN, FOUNDATIONS OF EVIDENCE LAW (2005), at 178.
23. I borrow this example from Park, supra note 7, at 741.
we also know that people quite often, and perhaps usually, act in character.
If we did not know this, there would be little point to the whole debate
about character evidence. We must be wary about nding defendants with
unsavory characters guilty, but in the case described, we are to suppose
that we have, in addition, substantial trace evidence suggesting that the
defendant did act in character. If the trace evidence gets the jury that far,
then it does not seem inappropriate for the character evidence to seal the
defendants fate.
Granted, there is a risk in allowing the introduction of such evidence
namely, that innocent defendants will on occasion be found guilty. But there
is also a risk if we do not allow its introductionthat guilty defendants will
sometimes be found not guilty. If it is argued that we have (or ought to have)
a much stronger preference to avoid the former than to avoid the latter,
Laudans retort seems convincing. We do strongly prefer to avoid punishing
the innocent over not punishing the guilty. That is why we set the standard
of proof at such a high level in criminal cases. Yet once the BARD standard
is put in place, we should allow the introduction of all relevant evidence.
24
Those opposed to allowing the introduction of fresh, reliable, and specic
character evidence must convince us that it is irrelevant to determining the
guilt or innocence of defendants no matter how carefully it has been vetted
by the courts and evaluated, alongside relevant trace evidence, by the jury.
And that seems a most unpromising view to defend.
Nonetheless, as the quality of the trace evidence diminishes, so should our
condence that probative character evidence can plug the gap, so to speak.
I can imagine someone defending the continued use of fresh, specic, and
reliable propensity evidence to warrant a nding of guilt BARD in a given
case even if the trace evidence is signicantly short of clear and convincing.
But in such cases the possibility that the defendant may have acted contrary
to his propensity should loom larger. After all, these will be cases in which
there are some reasons for believing that the defendant did not act in
character (though perhaps more or stronger reasons to believe that he did)
or there is only suggestive trace evidence that he is guilty, but little more
than that. My sense is that a nding of guilt in such cases depends rather
too much on evidence concerning the defendants unpleasant past and not
enough on evidence concerning the conduct for which he is on trial.
Again, the extent to which character evidence is fresh, reliable, or specic
will be matters of degree. Suppose, for instance, that while freshandreliable,
the character evidence the prosecution seeks to present shows only that a
defendant is prone to acts of violence or predation, though not ones of the
specic kind for which he is currently on trial. The prosecution might be
able to show that the rape defendant is the kind of person who steals from
others or engages in brawls but not that he is a sexual predator who in the
past defended his actions with dubious claims of consent on the part of
24. This line of argument is developed in LAUDAN, supra note 2, ch. 5.
his victims. True, the character evidence suggests that the defendant is not
wholly averse to illegally victimizing others and thus might be thought to be
somewhat probative. Nevertheless, we should be more reluctant to allow its
introduction. Why is this? Because if we do, jurors will be implicitly (if not
explicitly) asked to make two worrisome inferences as opposed to one: First,
because the defendant is the kind of person who commits other kinds of
crimes, he is therefore the kind of person who would commit the crime in
question, and second, because he is the kind of person who would commit
the crime in question, he therefore is more likely to have committed it. The
latter inference is already somewhat worrisome, and the former is more so.
If the trace evidence is only up to the PoE standard, then the two propensity
inferences forge an arguably quite tenuous link from the trace evidence to
a conclusion of guilt BARD. It seems clear that if we admit such propensity
evidence at all, we should insist that the trace evidence in the case meet
the CACE standard. And as the character evidence becomes less fresh, less
reliable, or less specically related to the kind of crime with which the
defendant is charged, even trace evidence meeting that standard arguably
would not be sufcient to establish the defendants guilt BARD.
It might be objected that it will be exceedingly difcult for judges to craft
instructions enabling juries properly to understand and use character evi-
dence that has been admitted due to its freshness, reliability, and specicity.
Even if judges succeed in making vivid the distinction between trace and
character evidence and explaining how the former must be clear and con-
vincing before the latter can be properly put into play to reach a verdict, we
might worry that the character evidence will displace or simply overwhelm
the trace evidence in the jurors minds. Of these two concerns, the latter
seems the more difcult one to address. Judges must often formulate and
give complex instructions to juries, and it is not clear that the challenges
they face in helping jurors understand how to weigh and balance character
evidence against trace evidence are different in kind. Whether jurors will
follow the instructions provided and therefore keep character evidence in
its proper place, so to speak, is something that might have to be monitored
aggressively by judges. As I note below, we may need to encourage judges to
scrutinize and reject verdicts that are not supported by clear and convincing
trace evidence in cases in which character evidence is admitted.
This brings us to cases in which the issue before the court is whether it
was the defendant rather than someone else who committed the crime with
which the defendant is charged. These kinds of cases are probably more
common than the nonidentity cases, and it may be that those generally
opposed to the use of character evidence in criminal trials are thinking
mainly about them. Why might fresh, reliable, and specic character evi-
dence be seen as having less probative value in these types of cases? Because
knowing (or reasonably believing) that the defendant is the kind of per-
son who would commit the crime in question if given the opportunity tells
us nothing about whether she is the person who committed the crime in
this case. There may have been numerous individuals in the vicinity of the
crime about whom it is true that they would have committed the crime in
question if given the opportunity. It makes little difference to add that we
have reason to believe that most people act in character most of the time.
For that is also true of a wide range of people with criminal propensities.
All that fresh, reliable, and specic character evidence tells us is that the
prosecution has charged the right kind of person with the crime. In this
regard, it is somewhat like trace evidence that shows that the crime was
committed by someone with blue eyes. Assuming that the defendant has
blue eyes, such evidence shows that the state has charged the right kind of
defendant. Still, it is worth noting that character evidence showing the de-
fendant to be the right kind of person to have committed the crime actually
shows less, since the crime may have been committed by someone acting
out of character or by someone with uneven or wavering character. And
character evidence is strongly prejudicial, so we must be on guard against
its introduction overwhelming the trace evidence in a given case.
Afurther complicating factor inidentity cases is this: whenthe perpetrator
of a crime is unknown, police tend to focus on individuals in the vicinity
of the crime who have past criminal records. This practice of rounding
up the usual suspects may affect the prole of cases that wind up going to
trial.
25
When the practice yields actually guilty individuals, they are likely
to plead rather than go to trial. It is the materially innocent who may insist
on trials in order to vindicate themselves. This means that in identity cases,
a higher percentage of those on trial may in fact be wrongly accused, in
part because of their past records. Jurors may be unaware of these skewing
effects of police practices, though presumably they could be informed of
them. In any case, the danger that the innocent have been rounded up is
real and should be more troubling in identity cases.
Suppose, for instance, that defendant A has been charged with homicide,
and there is clear and convincing trace evidence establishing her guilt. How-
ever, suppose also that the evidence is short of BARD conclusive because
the defendant has provided an alibi that the prosecution has not been fully
able to refute or because some of the physical evidence is consistent with
another individuals having committed the crime. Would allowing the in-
troduction of probative propensity evidence concerning the defendant seal
her fate as it did in the nonidentity case? It seems not. Such evidence does
nothing to rebut her alibi or counteract the recalcitrant physical evidence;
it only shows her to be the right kind of suspect in the case. There may be
numerous other people who are the right kinds of suspects, and propensity
evidence against the defendant does nothing to eliminate them. Granted,
most jurors, if presented with such propensity evidence in the kind of case
described, might nd the defendant guilty. But the question is whether they
25. See RICHARD O. LEMPERT, SAMUEL R. GROSS & JAMES S. LIEBMAN, A MODERN APPROACH TO
EVIDENCE LAW, 327328 (3d ed. 2000).
should do sowhether such evidence does anything at all to bridge the gap
between CACE evidence and evidence BARD. It is hard to see how it does.
There might be some identity cases in which propensity evidence is more
probative. Consider a case in which A and B are both suspected of having
committed homicide and where the prosecution can establish not only that
they are the only two who could have committed it but that only one of
them did so. The problem for the courts is determining which of the two
committed the crime. Suppose that the trace evidence strongly suggests that
it is A rather than B who committed the homicide, so the state charges A
and the case proceeds to trial. Suppose, however, that the trace evidence
is somewhat short of being BARD convincing. B was, after all, at the scene
of the homicide, and A testies that it was B who did the killing. Yet the
physical evidence points toward A, and B testies that it was A who did the
killing. Suppose also that there is fresh, reliable, and specic propensity
evidence showing that A is the kind of person who is prone to violence
against others, whereas nothing of the sort exists regarding B. In that case
it does not seem unreasonable for a jury to employ the propensity evidence
to reach the conclusion that A should be found guilty of the homicide. By
hypothesis, other individuals with homicidal tendencies who might have
been the killer have been ruled out, and both the trace and propensity
evidence point rather decisively toward A.
But suppose that there is propensity evidence showing that B also has
clear homicidal tendencies. Then what? It still seems that the jury might
act reasonably in nding A guilty, assuming that it knows that either A or B
must have done the killing. The physical evidence points toward A, as does
the propensity evidence. The jury might be given pause by the propensity
evidence against B, but it would likely reason (and plausibly so) that if one
of the two did the killing, A is far more likely to have done so. It might
even reasonably reach such a conclusion if the trace evidence against A
is somewhat weaker than clear and convincing. Still, it is easy to imagine
harder cases. For instance, suppose that the trace evidence does not point
decisively or even very clearly toward either suspect, but the propensity
evidence points exclusively toward one of them. We might predict that a
jury in a trial for A would nd A guilty if the propensity evidence against A
were damning, on the reasoning that if one of the two committed homicide,
A is the more likely culprit. The same prediction would hold if the probative
propensity evidence were against B.
But would juries act responsibly in reaching these conclusions? That is a
tough call. On a strict interpretation of the BARDstandard, one would think
not. There are two plausible suspects, the trace evidence is inconclusive, and
all jurors have to go onis propensity evidence that tells themof a defendants
tendencies, but nothing more. Reasonable doubt seems to exist, in the sense
that there is an alternative explanation of events exonerating the defendant
(namely, the other suspect did the killing) that the state may not have
successfully rebutted. Jurors might in fact convict the defendant against
whom the character evidence points, but it is not apparent that they should
do so. Of course, if the character evidence implicates both or neither of the
defendants, then juries in their respective trials pretty clearly should nd
them not guilty in spite of the powerful motivations they will have to hang
the crime on someone.
It is important to notice how things change if A and B are not the only
two possible killers but the only two that the police and prosecution have
identied as such and focused their energies upon. In that sort of case,
clear and convincing evidence that A or B committed the homicide, even
when combined with credible propensity evidence regarding the individual
in question, does not seem sufcient to warrant a conclusion of guilt BARD.
Again, suppose that the individual against whom such evidence is stacked
offers an alibi that the prosecution does not fully rebut, or that there are
one or more pieces of physical evidence that cast doubt on his guilt. As in
the earlier homicide case, the propensity evidence does not bridge the gap
between the trace evidence and a nding of guilt BARD because it is simply
unknown how many other individuals might have similar propensities but
have exhibited them for the rst time, or who, lacking them altogether,
acted out of character.
Summarizing my conclusions so far, the criminal records of individuals
are unlikely to reveal much about their broader characters, though they
may reveal things about their more specic propensities or past-conduct
patterns. The extent towhichpropensity evidence is probative ina givencase
depends on its reliability, freshness, and specicity. It is arguably permissible
to introduce highly probative propensity evidence in a criminal trial despite
its tendency to bias jurors against the defendant. However, jurors should
be strongly encouraged not to let their knowledge of character evidence
interfere with their evaluation of the trace evidence. Even when the trace
evidence against a defendant is clear and convincing, credible character
evidence has more probative value in cases where the point of a trial is to
determine whether a defendant acted criminally than in cases where a trial
must determine if it is the defendant who acted criminally.
III. CHARACTER EVIDENCE UNDER LESS-THAN-IDEAL
CONDITIONS
In my introductory remarks, I suggest that some of the debate about char-
acter evidence may derive from the failure to make a distinction between
its introduction and use under ideal conditionsones strongly conducive
to error avoidance in criminal trialsand its introduction and use under
less-than-ideal conditions. As we see above, fresh, reliable, and specic char-
acter evidence must be used cautiously by jurors. They must not allow it to
affect their evaluation of the trace evidence and they must use it with the
knowledge that both good and bad people sometimes act out of character.
They must understand and accept the presumption of innocence accruing
to defendants and that it is the state that bears the burden of proof in crim-
inal cases. That burden is a stringent one, requiring the persuasive rebuttal
of all evidenced alternative explanations to the states version of events in
the case. Jurors must be able to distinguish the BARD standard from the
CACE and PoE standards and recognize and apply these distinctions to the
various types of cases in which character evidence might be relevant. In cases
where the identity of the criminal agent is at issue, they must recognize the
limitations of fresh, reliable, and specic character evidence. In particular,
they must keep in mind that the defendant with known criminal tendencies
before them may be only one possible perpetrator of the criminal act.
Given the lengthy list of conditions that must be met for character ev-
idence to be used appropriately and well, it is important to consider just
how often these conditions are apt to be satised. They may, in fact, often
not be, and in ways that bear directly on the advisability of introducing
character evidence into criminal trials. In the rst place, jurors will need
considerable help from judges and defense attorneys in grasping and apply-
ing the relevant concepts and distinctions. As we see above, some advocates
of relaxed character-evidence rules argue that the weakly probative kinds
can be agged by defendants attorneys and shown to be of such dubious
value that jurors (or, less often, judges) will not be misled by them.
26
But not
all defendants will have adequately compensated or experienced criminal-
trials attorneys, and this might diminish our enthusiasm for permitting the
introduction of such evidence. Still, most attorneys probably will be aware
of the dangers of character evidence and motivated enough to monitor its
introduction and insist that juries be given appropriate instructions in its
use.
Second, it is apparent that the judges presiding over trials will vary not
only in their sympathies toward defendants but also in the care with which
they screen dubious character evidence or instruct jurors about its probative
value. They will also vary in the extent to which they emphasize and explain
clearly to jurors suchcrucial legal concepts as the presumptionof innocence
andthe BARDstandard(or, inthe case of benchtrials, understandor adhere
to these requirements themselves). As Laudan makes abundantly clear in
his discussion of these matters, there is widespread confusion among both
judges andlegal scholars about these core features of criminal trials.
27
Tothe
extent that such confusion pervades judges decisions or their instructions
to jurors about character evidence, we have reason to be concerned about
howwell those whotry the facts will evaluate suchevidence. Moreover, evenif
we were to imagine improved instructions from judges to jurors about these
26. Laudan hints at this approach in a number of places in LAUDAN, supra note 2; see, e.g., id.
at 121, where he suggests that the reliability of evidence be left in the jurys hands provided
that the arguments from counsel and instructions from the judge inform the jurys assessment
of reliability. See also id. at 2425.
27. Id. at 3251.
complex legal concepts and the kinds of evidence they are to consider or
ignore, juror studies tell us that there is some tendency for jurors to ignore
instructions from judges in cases in which these instructions conict with
what jurors regard as just outcomes.
28
Defendants whose disreputable pasts
are revealed might not fare well in court regardless of the strength of the
trace evidence against them or the instructions given to jurors.
Third, jurors will vary widely in their levels of education, capacities for
complex reasoning, and attitudes toward police, prosecutors, and the crim-
inal justice system as a whole. They will also differ in their abilities to under-
stand, apply, or abide by complex legal concepts. There is some evidence,
for instance, that many jurors do not understand or accept the presumption
of innocence, preferring instead to presume defendants guilty until they are
proven innocent.
29
This is an especially powerful reason to avoid putting
weakly probative character evidence in their hands and it might be a reason
for not providing them with highly probative character evidence. Similarly,
we might wonder about how well most jurors understand the BARD, CACE,
and PoE standards. Given the evident confusion among judges and legal
scholars about them, it would not be surprising to nd that many jurors
are uncertain or confused about what they mean or how to apply them.
Again, better and more frequent instructions from the judge might aid ju-
rors in this regard. However, if reliable character evidence is introduced
into a trial, judges will also have to explain the complex interplay between
it and trace evidence and identify the circumstances in which character ev-
idence is useful in enabling jurors to reach a conclusion of guilt BARD. In
addition, jurors must be prepared to entertain alternative interpretations
of the trace evidence. Only then will they be in a position to see how far
the trace evidence carries them toward the conclusion that the defendant
is guilty BARD. Yet we might wonder in general how capable or motivated
jurors are to perform these complex hermeneutical tasks and in particular
how capable or motivated they will be to do so if presented with evidence
suggesting that a defendant has a highly unsavory character.
30
28. See Devine, Clayton, Dunford, Seying & Pryce, supra note 15, at 666667. See also Shari
Seidman Diamond, Beyond Fantasy and Nightmare: A Portrait of the Jury, 54 BUFF. L. REV. 717763
(2006), at 752.
29. See Mitchell J. Frank and Dawn Borschard, The Silent Criminal Defendant and the Presumption
of Innocence: In the Hands of Real Jurors, Is Either of Them Safe?, 10 LEWIS & CLARK L. REV. 237285
(2006), at 249251; and Keith A. Findley and Michael S. Scott, The Multiple Dimensions of Tunnel
Vision in Criminal Cases, WIS. L. REV. 291397 (2006), at 340341.
30. FED. R. EVID. 403 permits a judge to exclude otherwise probative evidence if its nature is
such as to iname unfair prejudice against the defendant. One can imagine that certain kinds
of fresh, reliable, and specic criminal histories would do so (e.g., of violent sex crimes against
children). Still, the rule requires the judge to balance the probative value of the evidence
against its prejudicial effects. Not only is this a difcult task, but, as Laudan points out, judges
may not be in a position really to know what kinds of evidence invariably lead jurors to respond
viscerally to defendants, thereby stimulating jurors to make dubious inferences from relevant
but inammatory evidence. Laudan prefers to let jurors have all relevant evidence, especially if
they can be strongly cautioned and carefully instructed by the judge in their use and evaluation
Fourth, as has already been noted, our willingness to allow past-conduct
evidence into criminal trials should depend in part on its reliability. This is
especially true with regard to defendants past criminal records. It is appar-
ent that defendants criminal records can sometimes say more about the
opportunities available to them (or, in the case of severely socially deprived
defendants, not available), the activities of the police (in particular, whom
they tend to routinely target or investigate), or the political or personal
agendas of prosecutors than they say about defendants and their charac-
ters. One does not have to be completely cynical about the police and
prosecutors to recognize that they vary considerably in their capabilities,
respect for the law, and integrity. Indeed, one does not have to search too
far to nd cases where police have done poor jobs of investigating crimes or
have inexplicably targeted suspects, all the while ignoring important excul-
patory evidence and other, more likely suspects, and where prosecutors have
so single-mindedly focused on getting convictions that they have employed
tactics (e.g., the use of jailhouse snitches) that are deeply problematic if
not unethical.
31
One might hope that the miscarriages of justice that result
from police or prosecutorial misconduct are more the exception than the
rule. But their existence should make us wary of relying in an uncritical way
on defendants past criminal records. Perhaps long criminal records show
something signicant about defendants character in ways that short ones
do not, but even with the former we might want to exercise some caution.
Again, the preceding set of concerns has particular relevance for our
evaluation of the extent or ways in which more character evidence might
be used in criminal trials. Such evidence is not only potentially highly prej-
udicial against defendants, it is also evidence that must be utilized in ways
that complicate the decision-making tasks confronting jurors. It is possible,
of course, to envision reforms in the criminal justice system generally and
in criminal trials specically that would reduce the hazards of permitting
jurors access to character evidence in their deliberations. More generous
funding of defense counsel for indigent defendants would have salutary ef-
fects of many kinds and would likely produce more and better challenges to
the introduction and use of character evidence. Better and more insistent
instructions from judges in both the early and late stages of trials might also
help, although, as we see above, there is evidence that jurors do not heed
them in some instances.
More radically, we might consider the feasibility of replacing citizen ju-
rors with lay judges who, together with regular judges, weigh and evaluate
of it. But as we have just noted, such conditions on its admissibility may not always be satised.
For Laudans discussion, see LAUDAN, supra note 2, at 1925.
31. A sobering account of just how badly criminal justice in the real world can go off the rails
is provided by the nonction work, JOHN GRISHAM, THE INNOCENT MAN: MURDER AND INJUSTICE
IN A SMALL TOWN (2006). For a scholarly treatment of the ways in which cognitive errors of
various kinds can infect criminal investigations and trials, see Findley & Scott, supra note 29.
the evidence against criminal defendants.
32
The advantage of employing
lay judges is that they gain considerable experience trying cases and might
be expected to adhere better to the rules of evidence, abide by relevant
legal standards of proof, and follow the instructions of the regular judges
with whom they work on a continuing basis. Another possibility would be
to require jurors to produce reasons for their verdicts, so that the presiding
judge could better evaluate whether they have followed her instructions,
observed legal standards of proof, and correctly weighed probative charac-
ter evidence against trace evidence. Such a requirement will be resisted by
some on theoretical or practical grounds, but it is not apparent why jurors
reasoning should be insulated from more scrutiny. Independently of such
a requirement, we might strongly encourage (or better, require) judges to
evaluate jury decisions more often or rigorously and set them aside when
they are unsafe, that is, not supported by the evidence.
33
The obligation
to do this could be made especially stringent in identity cases where char-
acter evidence has been introduced alongside trace evidence, though such
an obligation might exist in the nonidentity cases as well. Judges would be
understood as duty-bound to determine whether the trace evidence is at
least clear and convincing. Individuals convicted of crimes based in part on
character evidence would have grounds for appealing their convictions in
the absence of such a judicial determination.
Yet if we encourage or require judges to reject unsafe convictions, should
we not also require themto overturn acquittals, especially in the nonidentity
cases in which the trace evidence was, in their opinion, clear and convincing
and the character evidence fresh, reliable, and specic? In other words, it
might seem that I am concerned only with the correction of errors by ju-
ries when they produce inappropriate convictions of defendants, not when
they produce inappropriate acquittals. But error is error, whether it is to
the unjust disadvantage or advantage of defendants. This is an important
point, though it raises issues that go beyond the scope of this paper. Even if
we set aside the formidable constitutional obstacles to judges overturning
acquittals by juries, we would have to confront the debate over the desirabil-
ity of jury nullication.
34
Acquittals in the face of overwhelming evidence
against defendants arguably serve important purposes that convictions in
spite of insufcient evidence against them do not. Hence there might be
more reason to guard against the latter than the former.
32. See Douglas G. Smith, Structural and Functional Aspects of the Jury: Comparative Analysis and
Proposals for Reform, 48 ALA. L. REV. 441581 (1997), at 454469.
33. Cf. Risinger, supra note 21, at 13141316.
34. For discussion of jury nullication, see Matt Matravers, More Than Just Illogical: Truth and
Jury Nullication, in THE TRIAL ON TRIAL VOLUME 1: TRUTH AND DUE PROCESS 7183 (A. Duff,
L. Farmer, S. Marshall & V. Tadros eds., 2004); Thom Brooks, A Defense of Jury Nullication, 10
RES PUBLICA 401423 (2004); and Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law
of Inconsistent Verdicts, 111 HARV. L. REV. 771835 (1998), esp. at 794801.
Finally, as already suggested, any character evidence to be introduced
against a defendant should be properly vetted by the judge, with hearings
conducted away from the jury. This would permit defense counsel to chal-
lenge inaccuracies or other problematic features of the defendants criminal
record. Moreover, if the hearings were extended to character evidence that
the prosecution sought to use to impeach a defendants testimony at his
trial, they would have other laudable consequences. Not only would de-
fendants with criminal records be more likely to testify in many cases and
thereby offer jurors their side of the story, but factually innocent ones with
criminal records would have less to fear from doing so. As things currently
stand, defendants who wish to testify risk impeachment based on their
past records, regardless of the relevance of their records to the current
charges against them. Such impeachment is likely to be highly prejudicial
to them. Moreover, defendants who elect not to testify for fear that their
past records will be raised face increased odds that they will be convicted
even if they are materially innocent.
35
That is not only unfortunate, it is
unnecessary.
IV. CONCLUDING REMARKS
In the absence of reforms of the kinds noted in the previous section, we
might reasonably continue to permit the introduction of specic and reli-
able past-conduct evidence, drawn from a defendants previous convictions,
that establishes an element of the prosecutions case (e.g., modus operandi)
or rebuts defense claims (e.g., concerning a defendants knowledge of how
to commit a type of crime). Such evidence does not really concern the
defendants character or directly invite jurors to draw inferences from the
kind of person the defendant is to a nding of guilt or innocence in the
current case. Its probative value is high enough to outweigh the risk that
it will have prejudicial effects. So-called character testimony by witnesses
about a defendants reputation in the community appears to have weak
probative value but might be allowed since it is unlikely to have strong prej-
udicial effects and jurors can be cautioned against reading too much into
it even by inexperienced or underpaid defense attorneys of the kinds many
defendants are apt to have. The same is true for witness testimony involving
direct observation of a defendants conduct. It, too, may tell us little about
the defendants character or even specic propensities but it may provide
useful evidence about a defendants conduct in circumstances similar to
those of the crime for which she is on trial. Again, even overburdened or
inexperienced defense counsel should be able to challenge such evidence
or warn jurors about its reliability or relevance.
35. The effects of criminal records on the willingness of defendants to testify at their trials
are nicely summarized in LEMPERT, GROSS & LIEBMAN, supra note 25, at 327328.
However, my sense is that in the absence of substantial reforms, we should
otherwise resist the introduction of a defendants past criminal record into
a trial, especially in cases where the identity of the criminal agent is at issue.
Granted, a defendants criminal record may furnish us with fresh, reliable,
and specic evidence concerning her propensities. In nonidentity cases, it
may be possible for jurors to resist the biasing effects of such evidence and
to consider it independently of and alongside the trace evidence against
defendants. There is the danger that jurors will not be able to do this and
that they will not receive sufcient assistance in doing so from the judge
or defense counsel for the accused. Yet these dangers seem worse in the
identity cases, where, in addition, jurors must bear in mind the fact that
there are likely to be other people with the relevant propensity (and some
without it) who might have committed the crime in question.
It has been argued that the complications posed by character evidence
are no greater in degree than or different in kind fromthose posed by other
kinds of evidence that we routinely ask jurors to confront.
36
If jurors cannot
be trusted to avoid inferential error with regard to character evidence, then
there is little reason to believe that they can be trusted to do so with regard
to other types of evidence. But this argument seems unconvincing for two
reasons. First, we must consider the real or alleged problems with each type
of evidence on a case-by-case basis, both to assess the probative value of the
evidence in question and to weigh the likelihood of its producing infer-
ential errors by jurors. Second, once we have done so, we might plausibly
exclude certain kinds of evidence (because their probative value is weak or
nonexistent or their effects are too prejudicial) or allow them, but only if we
can be reasonably assured that jurors will be cautioned about the evidence
and receive appropriate help in using it. We should, in other words, resist
the invitation to view or treat all kinds of evidence in the same way simply
because any of themmight be misunderstood or misused by those entrusted
with determining the fate of criminal defendants.
Laudan argues against defendant-friendly rules that exclude probative
evidence from trials. His view is that the presumption of innocence and the
BARD standard already favor defendants (and rightly so, given our strong
preference for not convicting the innocent over convicting the guilty). Rules
barring the introduction of character evidence, in addition to being incon-
sistent, make it even more difcult for the state to convict defendants and
thereby create distributionist creep.
37
Instead of protecting the innocent,
such rules tend to protect the guilty, and that is a kind of error that we
should equally attempt to avoid. Yet Laudan seems more convinced of the
probative value of a defendants past criminal record than I am and more
sanguine about the abilities of jurors to utilize character evidence properly.
36. Sanchirico, supra note 5, at 12451246.
37. LAUDAN, supra note 2, at 136. For Laudans full discussion of the distributional tendencies
of modern evidence law, see id. at 117146.
The more important point is this: in urging considerable caution in the
use of character evidence, my aim is not to add protections to defendants
that go beyond the presumption of innocence and the BARD standard.
Rather, it is to try to ensure that the presumption of innocence is not subtly
undermined by the introduction of a defendants past criminal record and
that defendants are convicted only when the trace and character evidence,
taken together, satisfy the BARD standard.

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