I. A Definition of Propensity Character Evidence
Propensity character evidence is the use of evidence of a person’s
character or trait of character to prove that he has a propensity to act
in a specific manner and thus that he likely acted in conformity with
that propensity at the time of an alleged pre-trial wrong. For instance,
evidence that a defendant charged with a crime of violence had a
reputation for being violent would be propensity character evidence.
This is because it would be used to prove his propensity for acting
violently and his likely conformity with that propensity at the time of
the crime charged.
Alternatively, propensity character evidence can be defined more
simply as evidence whose probative value depends upon the
aphorism, “[o]nce a criminal, always a criminal,” such as evidence
that a person on trial for robbery had committed robberies before
(“Once a robber, always a robber.”). See Alegata v. Commonwealth, 231
N.E.2d 201, 209 (Mass. 1967) (“The concept of ‘once a criminal
always a criminal’ is abhorrent to our law.”).
II. Common Law Origins of the Propensity Character
In England, before the 17th Century, courts admitted almost any type
of evidence, with the only limitation being rules deeming certain
categories of individuals “incompetent” to testify. All other forms of
evidence were admissible under the inquisitorial system, which had
reigned in England since the Norman Conquest and which found an
evidentiary code unnecessary. Under the inquisitorial system, “it was
not considered irregular to call witnesses to prove a prisoner's bad
character in order to raise a presumption of his guilt.” John H.
Langbein, The Origins of Adversary Criminal Trial 190-91 (2003).
This open door policy with regard to propensity character evidence
could be explained by the inquisitorial system’s assumption that the
accused committed a crime and the concomitant requirement that he
affirmatively prove his innocence. One of the most conspicuous
consumers of propensity character evidence, and ultimately the
harbinger of its death, was The Court of Star Chamber. Established
in 1487, the Star Chamber was an expeditious way for the Tudors
and Stuarts to exorcise political and religious dissenters of the
monarchy while masquerading as a court conducting treason trials.
The Star Chamber was the Crown’s “organ of terror, renown[ed]
among the citizenry for its arbitrary and cruel decisions,” and one of
its most capricious practices was the deluge of character evidence it
admitted, resulting in defendants being punished for their sordid
character rather than their culpable conduct. Cheryl Swack,
Safeguarding Artistic Creation and the Cultural Heritage: A Comparison of
Droit Moral Between France and the United States, 22 Colum.-VLA J.L. &
Arts 361, 381 n.135 (1998).
The Star Chamber engendered widespread animosity in the citizenry
in the years preceding the English Civil War, eventually prompting
the revolutionary Long Parliament to abolish it in 1641. At the close
of the English Civil War, the Restoration, and the Glorious
Revolution, the same dissidents who were subjected to the
monarchy’s organ of terror had wrested control of the Parliament,
but still felt the sting of the Star Chamber. In an effort to prevent the
ills of the past from infecting the future, these new power wielders
passed the Treason Act of 1695, which contained a provision
proscribing prosecutors from proving at trial any overt acts by the
defendant which were not charged in the indictment, thus precluding
the admission of propensity character evidence. While this
prohibition on propensity character evidence was initially limited to
treason trials, it soon permeated all criminal trials, with courts and
commentators recognizing that the use of such evidence violated the
right to due process of law guaranteed by the Magna Carta.
B. United States
Eventually, the English ban on propensity character evidence carried
across the pond, with American courts in both civil and criminal