University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1998 Character at the Crossroads Roger C. Park UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Evidence Commons Recommended Citation Roger C. Park, Character at the Crossroads, 49 Hastings L.J. 717 (1998). Available at: http://repository.uchastings.edu/faculty_scholarship/594 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Park Roger Author: Roger C. Park Source: Hastings Law Journal Citation: 49 Hastings L.J. 717 (1998). Title: Character at the Crossroads Originally published in HASTINGS LAW JOURNAL. This article is reprinted with permission from HASTINGS LAW JOURNAL and University of California, Hastings College of the Law. Character at the Crossroads by ROGER C. PARK* Table of Contents I. The Basic Contours of the Character Evidence Ban .................. 718 II. Rationales for Exclusion of Character Evidence ........................ 720 A. Preventing Mistake and Misuse by the Trier of Fact .............. 720 (1) Inferential Error Prejudice .................................................. 720 a. The Probative Value of Character Evidence .................. 721 (i) Two Illustrations of Probative Value ........................ 725 ii) Character as Bunk? The Challenge of Situationism .................................................................. 728 b. Flaws in Human Reasoning That Might Cause Misuse of Character Evidence .......................................... 738 c. Problems Caused by the Trial Setting ............................. 741 d. The Problematic Nature of A PrioriRegulation of Inferential Error Prejudice ........................................... 743 (i) Difficulty of Setting Rules Ahead of Time ............... 743 ii) The Questionable Assumption of Judicial Superiority .................................................................... 744 (2) Nullification Prejudice ......................................................... 745 B. Cost-effectiveness ........................................................................ 746 C. Preventing Adversarial Misconduct and Distortion ................ 748 1 Bullying, Threats, Revenge ................................................. 748 2) Surprise, Ambush, and Attendant Hazards ....................... 748 3) Round up the Usual Suspects ............................................ 749 D. Goals Outside the "Rationalist Tradition ................... 749 (1) Departures from the Rationalist Tradition- as D escription ........................................................................ 751 (2) Departures from the Rationalist Tradition- as Prescription ....................................................................... 753 III. Particular Problems with the Current Rules ................................ 754 A . Com plexity ................................................................................... 754 B. Evasions, Misuse, and Mystification .......................................... 754 C. Inconsistent Treatment of Like Cases ....................................... 755 D. Perverse Side Effects ................................................................... 756 IV. Cures and Palliatives ....................................................................... 756 A. Crime-by-Crime Approach to Relaxation of the Ban ............ 756 * James Edgar Hervey Professor of Law, Hastings College of the Law, University of California. I wish to thank David Faigman, Richard Friedman, Steve Penrod, and Mi- guel M~ndez for helpful comments, and Lynn Dean and Jim Day for able research assis- tance. I am indebted to Peter Tillers, whose ideas have influenced and inspired my work. [717] HeinOnline -- 49 Hastings L.J. 717 1997-1998 HASTINGS LAW JOURNAL [Vol. 49 1 RationaleGuidelines of for a Crime-by-Crimea Crime-by-Crime Approach Approach ........................ ....................756758 a. Com parative Propensity ....................................................758 i) Recidivism and Comparative Propensity .................758 ii) Everybody Does It?-Rape .......................................764 iii) Dangers of Using Recidivism Data ..........................768 b. Seriousness ..........................................................................772 c. N eed .....................................................................................773 (3) Disadvantages of a Crime-by-Crime Approach ................773 B . Structured B alancing ...................................................................775 /1)Examples of Structured Balancing .....................................775 Evaluation of Structured Balancing ...................................776 C . Free B alancing ..............................................................................777 C onclusion ...............................................................................................779 I. The Basic Contours of the Character Evidence Ban In an often-quoted passage, McCormick wrote that "character" is "a generalized description of one's disposition, or of one's disposi- tion in respect to a general trait, such as honesty, temperance, or peacefulness."' Under this definition, the character ban prohibits evidence aimed at eliciting inferences based on attributions of broad cross-situational propensities. Clear examples include attributions that a person is: lawless law-abiding violent peaceable a liar trustworthy intemperate temperate a thief an altruist cruel kind lazy conscientious careless careful This ban on cross-situational propensity evidence is usually car- 1. CHARLES T. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE 340-41 (1st ed. 1954), quoted in FED. R. EvID. 406 advisory committee's note. HeinOnline -- 49 Hastings L.J. 718 1997-1998 Mar. 1998] CHARACTER AT THE CROSSROADS ried a step further, so that a defendant cannot be shown to have the propensity to commit a crime by use of evidence that merely shows that the defendant committed another crime that has the same statu- tory description. This means that a number of somewhat more spe- cific propensities, what I will call Level Two propensities, are consid- ered to be traits of character for purposes of the prohibition. These include the propensity to be: a bank robber a counterfeiter an embezzler a murderer a tax cheater a drug dealer a kidnapper a spouse-abuser a drunken driver a rapist2 However, the legal concept of "character" does not exclude evi- dence of more narrowly defined propensities, such as the propensity to: abuse a particularspouse 3 rob banks using poetic threats drown brides in the bath after insuring their lives4 warn dental patients of the dangers of anesthetic In other words, if testimony leads to an inference that a person committed an act without any intermediate inference about general cross-situational propensity (character), then the character evidence ban does not apply. The ban does not apply even if the evidence shows "propensity" in the sense of showing a proclivity to repeat situation-specific conduct. Examples of propensity evidence that is not, in the eyes of the law, character evidence, include testimony about habit (e.g., plaintiff always signaled a left turn), modus oper- 2. Rules 413-15 now allow specific-act character evidence to be admitted as evi- dence in rape and child molestation cases, but the traits are still treated as character traits that must meet an exception to be received into evidence. See FED. R. EVID. 413-15. 3. See State v. Annicker, 536 P.2d 1355, 1357 (Kan. 1975) (holding that evidence of physical assaults was admissible where identity of the murderer was at issue); People v. lllgen, 583 N.E.2d 515 (Ill. 1991) (holding that evidence of prior physical abuse over the course of a 17-year marriage was admissible to show intent and motive where the husband was accused of murdering his wife with a shotgun but claimed it was an accident). 4. See Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915) HeinOnline -- 49 Hastings L.J. 719 1997-1998 HASTINGS LAW JOURNAL [Vol. 49 andi (e.g., defendant had previously robbed banks using the same disguise), or motive (e.g., defendant had gambling debts, and there- fore had a motive to embezzle). The core of the character evidence ban is its exclusion of evi- dence whose value depends upon attributions of broad cross- situational propensities-inferences drawn from traits at the level of generality represented by the Level One and Level Two lists. Even for that type of evidence, there have been a few traditional excep- tions-for example, the "mercy rule" allowing a criminal defendant to call character witnesses, and the exception allowing attack upon a witness' character for truthfulness with evidence of prior convictions Federal Rules of Evidence 413 and 414, effective in 1995, added a significant new exception allowing character reasoning in cases in- volving serious sex crimes.6 This paper will explore the rationale for exclusion of other- crimes evidence and, in the changed environment brought by Rules 413 and 414, ask whether evidence should be admitted for character reasoning in cases other than sex-crime cases. 1. Rationales