A Law at War with Itself - Character Evidence and the Doctrine of Chances

AuthorLen Niehoff and Shannon Hickey
PositionProfessor from Practice at the University of Michigan Law School, of counsel to Honigman LLP in Ann Arbor, and an associate editor of Litigation/Student at the University of Michigan Law School, class of 2026
Pages14-19
Published in Litigation, Volume 50, Number 4, Summer 2024. © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 14
A Law at War
with Itself
Character Evidence and the
Doctrine of Chances
LEN NIEHOFF AND SHANNON HICKEY
Len Niehoff is Professor from Practice at the University of Michigan Law School, of counsel to Honigman LLP
in Ann Arbor, and an associate editor of L. Shannon Hickey is a student at the University of Michigan Law School, class of 2026.
Certain legal principles have raging within them a kind of civil
war. Important but abstract policy concerns pull the doctrine in
one direction; common sense and practical experience pull it in
another. Casualties ensue.
Perhaps no body of legal doctrine better exemplifies this sort
of internal conflict than the general ban on character evidence,
as embodied in Federal Rule of Evidence 404(a)(1). That rule
states: “Evidence of a person’s character or character trait is
not admissible to prove that on a particular occasion the person
acted in accordance with that character or trait.” The rule has
deep roots in the common law.
Rule 404(a)(1) follows a structure that is common among the
exclusionary rules found in section 4 of the Federal Rules of
Evidence. It identifies a category of evidence—here, evidence of
someone’s character. And it describes a specific forbidden use
of that evidence—here, inviting the fact finder to conclude the
individual has a propensity to act consistent with that character.
The ban obviously applies to testimony that expressly speaks
to someone’s character. So, for example, a prosecutor cannot, in
the prosecution’s case-in-chief, call a witness to testify: “I’ve
known Willie for many years and he’s criminally inclined.” That
testimony comes up to you, grabs you by the lapels, shakes you,
and screams: “I’m character evidence!”
“Other Acts” Evidence
But character evidence can also come in less obvious forms. The
most common of these is “other acts” evidence. If, for example,
a prosecutor offers proof of distinct but similar acts by the de-
fendant in an effort to show the defendant likely also committed
the crime charged, then that’s character evidence, too.
“Other acts” evidence does not necessarily come to us announc-
ing that it is character evidence. Nevertheless, if the prosecutor
offers such evidence to show that the defendant has a propensity
to behave in a certain way, it meets the definition. A prosecutor
therefore can’t try to prove that Willie robbed this bank by show-
ing that he robbed 20 others and so has a predisposition to commit
such crimes. That’s the reasoning the rule forbids.
Strong policy arguments support our law’s long-standing hos-
tility toward character evidence. Such evidence brings with it the
risk that the jury may convict the defendant because it views the
defendant as a bad person, rather than because the prosecutor has
proved beyond a reasonable doubt that the defendant committed
the crime charged. And the jury may not worry about making a
mistake, reasoning that there is little or no harm in taking a scoun-
drel off the street. Of course, such an error puts the wrong person
in prison and leaves the perpetrator free to commit more crimes,
but those issues may not deter the jury from thinking this way.
Proving character through other acts evidence raises addi-
tional concerns. It requires a series of mini-trials regarding each
incident. Such a collection of detours may confuse the jury and
distract it from its central task. And the exercise will unavoidably
eat up trial time, delay the proceedings, and test the typically
short attention spans of jurors.
In response to these policy concerns, our law adopts a fiction.
It pretends that someone’s character and the acts that reflect it

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