Date01 March 2023
AuthorCollins, Erin R.

Introduction 354 I. The Promise 356 II. Breaking the Promise 358 A. FRE 413 & 414: Past Acts of Sexual Assault or Child Molestation to Prove a Defendant's Propensity to Commit these Crimes 359 B. FRE 404(a)(3) & 609: Past Convictions to Impeach a Testifying Defendant 362 C. FRE 404(b)(2): Past Acts for (Purportedly) "Non-Propensity" Purposes 364 D. The Implications 368 III. Assessing the Impact 371 Conclusion 375 INTRODUCTION

According to Federal Rule of Evidence (FRE) 102, the FRE "should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination." (1) Yet, it is increasingly accepted that the criminal legal system does not produce outcomes that are fair, just, or truthful. (2) This disjuncture between evidence rules' purpose and the outcome of the criminal process can be dismissed as probative of nothing: as more than 90% of criminal convictions result from guilty pleas, arguably the rules of evidence, which govern the adjudicatory process, cannot be a part of the problem. (3) In other words, it seems evidence rules are inapposite to conversations and visions about how to meaningfully reform our intensely punitive system.

This Article challenges that assumption. It argues that evidence rules--through their application or anticipated application--can unfairly and unjustly stack the deck against people accused of crimes, thereby encouraging conviction through guilty verdict or plea. As such, it contends, evidence law should be part of the broader scholarly conversation about systems and procedures that contribute to the expansive carceral state and targeted as a site for reform. Thus, as we envision a path towards decarceration, we must consider the barriers created by evidence rules, even if defendants often are effectively dissuaded from exercising their right to trial and the rules are never applied.

Scholars, myself included, have explored how specific evidence rules and applications of those rules can facilitate injustice for those accused of crimes. (4) This Article builds on and connects these critiques to examine how evidence rules come together to systemically disadvantage defendants in criminal cases and consider how the rules can function as part of the carceral state apparatus. It does so through a case study into one fundamental tenet of evidence law: that a person who is charged with a crime and goes to trial will be judged based on evidence of what they allegedly did, not who they are. This principle, as embodied in FRE 404, purports to guarantee that the government cannot convict someone based on evidence of their character. (5) As the Article shows, this promise is repeatedly and systemically broken in criminal cases, to the detriment of the accused.

Curiously, the FRE themselves do not define what it means to "administer every proceeding fairly." (6) Commentators have suggested that fairness should be understood as equity in decision-making, as "not unduly favorable or adverse to either side." (7) This case study, therefore, suggests that the rules do unduly favor one side--and, therefore, fall short of providing the fairness they promise.

The analysis proceeds as follows. Part I describes the foundational principles of FRE 404, (8) and Part II explores some of the ways in which these principles are warped to allow in abundant information about a criminal defendant's past. (9) Part III examines how this (mis)application of foundational evidence principles in criminal cases encourages guilty pleas, discourages trials, and ultimately facilitates the expansion of the carceral state. (10)


    "In a very real sense a defendant starts his life afresh when he stands before a jury." (11)

    In 1929, Joseph Zackowitz shot and killed Frank Coppola on a Brooklyn street after Mr. Coppola made lewd remarks about Mr. Zackowitz's wife. (12) The key question for the jury to decide when Mr. Zackowitz faced trial for homicide was his state of mind at the time of the shooting: was the act premeditated and deliberate, or the result of a sudden and seemingly uncontrollable impulse? (13) A key piece of evidence, admitted over Mr. Zackowtiz's objection, was proof that at the time of the streetcorner shooting he possessed--in his apartment--weapons other than the gun he used to shoot the victim. In seeking to justify the introduction of this evidence on appeal, the prosecution argued it showed Mr. Zackowtiz was '"a desperate type of criminal,' a 'person criminally inclined.'" (14) As the New York State Court of Appeals explained, it was evidence of "evil character," relevant "only as indicating a general disposition to make use of [the weapons] thereafter... a criminal affected with murderous propensity." (15)

    The Court ruled that this evidence was improperly admitted because it ran afoul of an evidence rule "long believed to be of fundamental importance for the protection of the innocent," namely that an accused person may not be convicted upon proof of their propensity to act in a certain way. (16) Or, as stated in FRE 404, which codifies this common law rule, parties may not use evidence of a person's character or character trait to prove that person "acted in accordance with the character or trait" on a specific occasion. (17)

    As then-New York State Chief Judge Benjamin Cardozo, writing for the majority, explained, this foundational rule is one "not of logic, but of policy." (18) While this ban on propensity evidence is transubstantive, applying equally to all civil and criminal adjudications, the policies it protects are particularly pronounced in criminal prosecutions. It reflects a fundamental distrust of the jury, a concern factfinders will either focus too much on evidence of the accused person's past and/or convict the accused person to punish them for their past, regardless of the weight of the evidence. (19) As the Supreme Court explained years later in Michelson v. United States, the rule:

    simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief... even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. (20) As a practical matter, this rule should prevent the government from introducing evidence of a defendant's past actions to prove they are the "type of person" who commits crimes. (21) There is, as the Supreme Court has underscored, "no question that propensity would be an 'improper basis'" for conviction. (22)

    On a symbolic level, this rule reflects something bigger: it acknowledges that people are not a mere product of their past; even if they have committed a crime in the past, that does not mean they have or will commit another crime in the future. In other words, it acknowledges that the inference of propensity, as tempting as it is, may not be true. A person accused of a crime, therefore, should be able to go before the jury without their past being used against them.


    The rule prohibiting character evidence promises that people charged with crimes will be able to "start their life afresh" before the jury, to be judged based on the evidence of the current charge, not on who they are or what they have done before. (23) It is widely accepted amongst courts, evidence scholars, and the drafters of the rules themselves that this principle is fundamental to our criminal adjudicatory system. (24) These policy considerations against admitting propensity evidence are so strong that they warrant precluding evidence that may, in fact, be probative of guilt and helpful in assessing "the truth." (25) As the Advisory Committee has noted, the principle is "so deeply imbedded in our jurisprudence" that it is considered a rule of "almost constitutional proportions." (26) Yet, as this Part shows, this foundational promise that one will not be prosecuted with character evidence is routinely broken--both explicitly, through exceptions to FRE 404's protections in FRE 413, 414, and 609, and implicitly, through unprincipled rulings under FRE 404(b)(2). Together, these exceptions and systemic misapplications of the rule combine to routinely deny people accused of crimes of the fresh start before the jury to which they are entitled.

    1. FRE 413 & 414: Past Acts of Sexual Assault or Child Molestation to Prove a Defendant's Propensity to Commit these Crimes

      The proscription in FRE 404 against using evidence of an individual's past as proof of their propensity to act in a certain way applies to all cases and to all parties--except for when it does not. People charged with certain crimes are explicitly and intentionally denied FRE 404's protection altogether.

      In 1994 Congress took the radical act of carving out a distinct exception to FRE 404 for cases involving allegations of sexual assault or child molestation. (27) FRE 413 and 414 allow that in criminal cases in which a defendant is charged with sexual assault or child molestation, respectively, "the court may admit evidence that the defendant committed any other act of sexual assault or child molestation." (28) Such evidence may be considered on any matter to which it is relevant, including as a basis for an inference of propensity to commit these acts. (29) In other words, these rules permit the government to prove that a defendant committed sexual assault or child molestation with evidence that...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT