Character Evidence is a difficult evidentiary concept to understand. Federal Rule of Evidence (“FRE”) 404 prohibits the admissibility of character evidence when used to show propensity of a particular conduct. Propensity means “[a] natural tendency to behave in a particular way; esp., the fact that a person is prone to a specific type of bad behavior.” The reasoning behind this logic is debated below.
Opinion – Why Character is Properly Excluded
The reason character evidence is inadmissible stems from FRE 403. It can be “unfairly prejudicial” to someone. Regardless, if someone acts in a certain way on one occasion does not mean that they will act that way in the future. People, and behaviors, are not static. They grow, and oftentimes as a result, change their behaviors.
The legal system in our country is in part built on the premise of deterrence. Liability and sentencing both in some way act as deterrents; deterrents on the general population in committing crimes/wrongs in the first place, and specific deterrents for those who have committed crimes/wrongs to not commit them again. If we allow evidence of prior bad acts and past crimes to be admissible for propensity purposes, aren’t we in a way discrediting the foundation of the legal system? By allowing prior bad acts and past crimes into evidence to show that someone has a propensity to do those things – we are basically admitting that deterrence does not work. While there are repeat offenders, there are also many people who never commit a bad act or crime again because the punishment they served the first time around properly deterred and reformed them from doing it again.
As an example – let’s take a student named Penny. Until she attended law school, Penny would procrastinate her assignments until the day before they were due. She even left her honors thesis corrections until the day before she had to submit them to her undergraduate library. One could use those instances to claim that Penny is a procrastinator. Despite her procrastination, she always managed to pull an A or an A- in her classes during undergrad, so she had no reason to change that aspect of her character. However, once she entered law school, Penny had a 1L bench brief to write. She waited until the very last minute to finish her paper and ended up pulling an all-nighter. Receiving only a B in the class, she learned her lesson and never procrastinated her assignments again.
Fast forward five years and let’s say Penny passed the Uniform Bar Exam and she has been sworn in as an attorney. The day before an answer to a complaint is due, while Penny is finalizing the complaint, she ends up having to go to the emergency room because her appendix burst. Assume Penny has an opposing counsel who would not agree to extend the deadline and the judge denied it too. As a result, Penny misses the filing deadline, despite her diligent effort until that point. A default judgment is entered against Penny’s client, and that client turns around and sues Penny for legal malpractice. What if her former client was able to put evidence in front of the jury that for two decades, she was a procrastinator? Juries are only human, and even if they believed she had a medical emergency, they may find that she acted in accordance with her previous character trait of procrastination.
Character evidence, for the purpose of propensity, doesn’t allow for any change in the human condition so it should not be admissible, because it will always be unfairly prejudicial.
Opinion – Why Character Should Not Be Excluded
Straight up old-fashioned propensity evidence should be permitted to be heard by the trier of fact in assessing criminal fault or civil liability. To illustrate – assume a particular driver, “Sean Speedster,” receives numerous speeding tickets (five) over a defined period of time, such as one year. Notice I did not say the driver has a habit of driving fast, where one could make an argument regarding admission under FRE 406.
Now let’s say that Sean Speedster is involved in an accident with “Alex Careful Driver” and injures her. Alex claims Sean was speeding when he struck her. Sean denies this and says Alex is lying.
Under the FRE, Alex is precluded from presenting evidence of Sean’s prior speeding tickets. Why? Because of a draconian law that says we should not use our common sense when evaluating whether a person acted the same way they had on prior occasions? Why should a jury not hear that Sean has sped numerous times before? The evidence is inherently reliable as an independent party (the police) had issued the tickets. Sean may still deny it and the jury is free to consider other factors. They do not have to solely rely on that evidence. It is unfair to Alex that she cannot enter Sean’s prior speeding history and it is unfair to the jurors not to be provided with all of the information needed to make an informed decision.
We, as a society, constantly use all the information available to us to make decisions. So why not in Court? The absurdity of this constraint is demonstrated best by an example in everyday life. Let’s say you meet someone you are attracted to and are interested in dating. Naturally, one of the first things you might do is inquire about them. Perhaps you may look on social media or ask friends about them. Now if you found out a friend also knew that person and they told you that they had cheated on their ex-partner, you might think twice before dating them. Imagine you found out they had cheated on five of their exes? That would certainly give you pause. Now you may ultimately decide you still will take the chance and date them, but shouldn’t you be entitled to all the information? And wouldn’t you be extremely angry at your friend if you found out they knew that information but kept it from you? That would not be a very good friend. This is no different than a Court keeping Sean’s speeding tickets from the jury.
In an age where information can be found at the touch of an internet search, why should a juror not be given all the credible information in deciding as to whether a person acted in a way that is at issue in the case. What the legislature is really saying is that they do not trust jurors with the information, so they want to prevent them from hearing it. This is an outdated and silly perspective and should be reformed.
The reasoning behind the constraints of FRE 404 can be debated ad nauseum. Please leave comments below to tell us what you think.
 Fed. R. Evid. 404(a)(1).
 Propensity, Black’s Law Dictionary (11th ed. 2019)
 Fed. R. Evid. 403.
 Fed. R. Evid. 403.
This is a great take on the FRE and propensity! While I reason with the opinion as to why propensity is excluded, I completely agree with the opinion that propensity should not be excluded. There is more harm then good excluding propensity evidence– look at poor careful driver Alex!
Well-written article and both sides have great arguments. I think propensity evidence should be excluded because it draws conclusions from one single instance. I mean look at Penny – she does not get a fair trial because of that single instance that happened YEARS ago. Juries can then be presented with decades of these single instances which can then dilute the purpose of the justice system.
I agree that juries are only human and are not trained to be totally impartial. (even if they are instructed to be) If a well skilled attorney, put information in front of them artfully to make it seem like Penny was procrastinating once again, it would only make sense that they would enter judgment against her. It’s practically impossible not to believe that someone who has done the same thing before in the past did not repeat the same mistake.
I believe that jurors, who are only human, do tend to consider the evidence presented in front of them. I think it is a split as to whether propensity evidence should be included or not. Essentially, Rule 403 is a balancing test of the probative value of the evidence against the harm likely to result from its admission into court. In Penny’s case, she wasn’t able to obtain a fair trial when they included propensity evidence showing she is a procrastinator when she didn’t even consider other factors such as how long ago she had stopped this habit and the real emergency she could not control the day before. That would be an instance where I would think it should be excluded. However, in Sean’s case, if the speeding tickets were all very recent, it could go to show that he has a habit of doing this. However, same thing with Penny, if this tickets were 1000 years old, then maybe it would be rather detrimental to include these prior tickets when he doesn’t even have a habit of speeding anymore and him injuring Alex was an accident.
Agreed. The 403 balancing test must always be used to determine admissibility. It acts as a safeguard. But with that safeguard in mind, why can’t we then eliminate 404?
Propensity should be excluded due to “fairness”. Juries already have the “propensity” to manufacture facts, i.e., to fill in the missing facts with their own biases.
Allowing propensity “evidence” simply gives the jury more reason to manufacture evidence and to see “evidence” that simply might not exist. That would not be fair to a defendant because it is allowing in “evidence” that may have nothing to do with this particular incident and thus criminalizes character rather than criminalizing the specific action that is the subject of the trial itself. Hence such is not true evidence of a crime.
Deterrence assumes a rational actor, someone who sits and calculates risk and reward. Many acts however are irrational, based on spontaneity, impulse, emotion, etc. and thus, by definition, can not be deterred.
P.S.: Jared is a great trial attorney. I’ve seen him in action. Your students are lucky! (Propensity evidence, I know, but Jared is not on trial).
High praise and wise words from a great attorney. Hope all is well Bob!
The rules of evidence governing the permissibility of propensity evidence are efficient in preserving the ideals of fairness and justice. Therefore, I agree with the authors that arguments can be made ad nauseum.
One can argue that if [Previous] Procrastinator Penny actually changed her ways, this situation is unlikely to arise. The day before the complaint is due, Penny is still altering the document. If procrastination is an illness, starting the task is the equivalent of scheduling a doctor’s visit. Though Penny may have begun writing the complaint at a reasonable time, she did not assemble a document adequate for court submission. If her complaint was sufficient, she could have e-filed it. It may not have been her best work, but it would protect her client against disqualification and herself from a malpractice suit. Penny’s human condition has not changed; therefore, the court should have allowed propensity evidence.
Alternatively, the governing rules of evidence provide sufficient protection for both Sean Speedster and Alex Careful Driver. FRE 404(b)(2) states that crimes, wrongs, or other acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Speeding is a crime, and Alex can further her theory of the case by employing several of these mechanisms. And if all else fails, technology has engendered the age of information, so dashcam footage will save the day.