Propensity-Persuasion and Prejudice

• Author: David Eskew, Paul Murphy
• Pages: 21-27

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Propensity—

Persuasion and Prejudice

A Look at “Other Acts” Evidence

DAVID ESKEW AND PAUL MURPHY

David Eskew is with Abell Eskew Landau, New York City. Paul Murphy is with Teitler and Teitler LLP, New York City.

“He did it before, do you really think he didn’t do it this time?”

This is the stuff of a defense lawyer’s nightmares. Lawyers lose

sleep over the notion that, despite all their hard work defending

the specific charges in a case, their client’s prior sins will nev-

ertheless be admitted into evidence and take on outsize impor-

tance in shaping the jury’s impressions of the client. And for good

reason. Evidence of a person’s propensity to act in a certain way

can be utterly devastating. Jurors may focus unduly on the prior

acts of misconduct to the exclusion of the government’s heavy

burden of proof, and they may be more willing to accept other

evidence offered against the defendant because it makes more

sense, given that, in their minds, the defendant is a bad actor.

The converse is often a motivating factor behind the tactic of

many white-collar defendants who have otherwise been pillars

of the community to parade character witnesses before the jury

in fraud cases to testify about the defendant’s reputation for

honesty. These witnesses, by design, are selected because they

know the defendant as a person and are completely ignorant

of the facts of the case. The defense is of course hoping that

the jury will conclude that the defendant is trusted by other

upstanding members of his or her community so they will be

inclined to discredit certain evidence offered against the de-

fendant or to credit certain defenses.

In a slightly different use of propensity evidence, defendants

often use what is referred to variously as reverse 404(b) evidence

or reverse “other acts” evidence in an effort to lay the blame for

the crime they are charged with committing at the doorstep of

a third party. They hope that by showing evidence that the third

party has committed criminal conduct in the past that is similar

to what the defendant is charged with, the jury will have a rea-

sonable doubt as to the culpability of the defendant.

The potential for the jury to draw these types of inferences

from “other acts” evidence is real. After all, it is human nature

to think that we all act consistently with our character traits.

Not only does the average person feel these sentiments in their

gut, but the concept that an individual may be inclined to act

in accordance with his or her “bad” or “good” character traits

is embedded in some of the most consequential areas of crimi-

nal law. In the federal system, for instance, a defendant’s prior

criminal history is part of a complex calculation used to deter-

mine a defendant’s sentencing guidelines range. More generally,

federal district courts are obligated to consider a defendant’s

“history and characteristics” when fashioning an appropriate

sentence. Prosecutors will lean on prior criminal offenses not

only in connection with the technical calculation of a defendant’s

criminal history score but also as evidence that a greater sentence