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Courts frequently depart from Federal Rule of Evidence 404, which prohibits evidence of a person’s prior acts to prove that the person acted according to a certain character or propensity. This leads to verdicts that are unpredictable and based on behavior not at issue in a case. I develop a theory of “aggregation evidence,” which draws on principles of estimation and data aggregation in statistics and ties together evidence from a broad range of contexts. I apply this theory to analyze the effects of character evidence on accuracy, and to understand why and when courts depart from the rule against character evidence. I show that a type of character evidence that I call “objective-chance evidence” stands apart from other forms of character evidence in its ability to improve accuracy. I then argue that a formal exception for this type of evidence may hold the key to a more coherent rule. An earlier version of this article can be found at the following address on the author page at: https://ssrn.com/abstract=3664837.

This paper examines the law on good character evidence in criminal trials through a discussion of the important but under-analysed case of Hunter, in which a five-judge Court of Appeal sought to clarify the law on good character directions to the jury. However, it is argued here that the judgment conflicts with the leading House of Lords decision in Aziz. The paper considers how the court misinterpreted the law and, in particular, the defeasible nature of the rule in Aziz and the impact of the Criminal Justice Act 2003. As a result, the circumstances in which a good character direction will be provided have diminished significantly. It is argued that this has important implications for the right to a fair trial, as good character directions act as a ‘backstop’ against miscarriages of justice. They also form a vital part of the ‘framework of fairness’ considered necessary, in lieu of reasoned jury verdicts, by the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium. Accordingly, it is contended that Aziz rather than Hunter should be followed so that, where there is evidence of good character, a direction is normally provided as a matter of law.

Many of Walter Scott’s fictional plots engage with serious crimes like treason and the violent acts involved in dueling. This article examines how Scott’s narrators draw on contemporary conventions...

This paper proposes new grounds for the legal ambivalence about ‘bad character evidence’. It is suggested that errors based on such evidence are profoundly tragic in the Aristotelian sense: the defendant who previously committed crime is likely to reoffend; nevertheless, she beats the odds and refrains from further crime commission – only to then be falsely convicted based on the very odds she has almost heroically managed to beat. It is further proposed that the tragic nature of such false convictions might make them particularly unfair to the defendant. It is, however, submitted that the likelihood of errors based on such evidence is unknown and probably also unknowable. Accordingly, the maximin rule for decision in conditions of deep ignorance is applied, leading to the conclusion that exclusion is to be preferred.

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Studies indicate that the “future danger” standard used by juries in Texas when determining whether to sentence a capital offender to death can result in inaccurate predictions. This already difficult to apply standard becomes impossible to use when applying it to capital offenders between the ages of 18-25. Studies released since the Supreme Court decided to no longer sentence juveniles to death show that the brain development of young adults differs little from that of juveniles. Because of their lack of brain maturity, young defendants still maintain a propensity for risky behavior and lack impulse control. This makes it difficult for a jury in a capital case to differentiate between traits indicating that a person is a “future danger” and traits that could potentially improve with age. Some of the most common factors used by prosecutors to show that a defendant is a “future danger” such as criminal history, expert testimony, and character evidence, do not adequately show the threat posed by a young defendant because age cannot be ruled out as a factor in their behavior. If this standard cannot adequately determine which young offenders actually pose a risk to others, then juries are arbitrarily sentencing defendants to death, and therefore violating the Eighth Amendment of the United States Constitution. This Article proposes that because capital offenders already go through a separate trial to determine their punishment, Texas courts should wait until a defendant reaches 25 before they determine whether to execute a young offender. This will make a prosecutor’s use of expert testimony, a defendant’s criminal history, and character evidence more predictable because a jury can assess an individual once their brain has fully developed and consider their behavior in prison. Under this proposal, Texas courts can continue to apply the “future danger” standard but will be able to eliminate the Eighth Amendment concerns that formulate when applying the standard to offenders whose age make a predictable assignment impossible.

This case note analyses the Court of Appeal's judgment in R v Hepburn [2020] EWCA Crim 820 on (1) the meaning of ‘reasonable belief in consent’ under s.1(1) of the Sexual Offences Act 2003 and (2) the admissibility of bad character evidence under the Criminal Justice Act 2003.

This chapter focuses on the notion that the role of the expert witness in modern Anglo-American trials is fundamentally paradoxical. It also focuses on the notion that the way to avoid most of the pitfalls awaiting experts is to be well prepared as a professional, for the task in general, and for the task as it presents itself in each individual case. The expert witness is caught in a tug-of-war between what the formal rules expect of the role and the dominant messages sent by the structure of the process. The legal system has an exclusionary system of rules of evidence, that is to say, the rules of evidence work mainly by filtering out certain kinds. Examples include: evidence not logically relevant to the law at issue, character evidence, repairs after an accident, settlement discussions, hearsay, and insufficiently well-grounded expert testimony, among many others.

Energy productivity is a key indicator to evaluate energy efficiency. However, few researchers focus on China’s energy productivity at the city level or its spatial patterns. The aim of this paper is to investigate the determinants and spatial character of changes to China’s energy productivity at the city level. The change in energy productivity is decomposed using a distance function approach, and its spatial character is identified through exploratory spatial data analysis, based on data from 248 cities between 2010 and 2014. The study revealed that China’s overall energy productivity exhibited a downward trend caused primarily by the effects of technological and technical efficiency changes at the city level. Additionally, significant spatial autocorrelation existed in energy productivity, although most cities did not show significant spatial clustering. Based on the above results, we provide relevant suggestions for policymakers.

Current legal trends tend to obscure the sharp distinction between substance and procedure. This tendency is manifested,inter alia, as a growing dependence of procedural norms in substantive law; greater flexibility of procedural norms; and growing judicial discretion to deviate from procedural rules. In order to evaluate these contemporary trends, we provide a theoretical analysis of the basic relationships between procedural norms and substantive legal outcomes. This framework reveals the moral commitments underling these modern trends as opposed to the moral foundations of the traditional view that legal decisions should be made under rigid procedural constraints. Focusing on criminal evidence law, the proposed theoretical framework is applied to some of the ongoing legal debates, such as about the admissibility of evidence seized in violation of rights, the exclusion of statistical and character evidence, and the flexibility of the reasonable doubt standard of proof.

A central principle of U.S. law is that individuals should be judged in court based on their actions and not on their character. Rule 404 of the Federal Rules of Evidence therefore prohibits evidence of an individual’s previous acts to prove that the individual acted in accordance with a certain character or propensity. But courts regularly deviate from or altogether ignore this rule, resulting in arbitrary judgments based on an individual’s prior acts rather than on evidence regarding the events at issue in a case. This raises serious constitutional and fairness concerns, deepens racial and economic inequality in the criminal justice system, and creates a range of socially harmful incentives. I address this problem from a new angle—a scientific one. I argue that a type of evidence that I refer to as “objective-chance evidence” is at the center of the unpredictability surrounding the rule against character evidence. I apply a simple statistical model to resolve longstanding confusion regarding the nature of objective-chance evidence, and to demonstrate the need for a new approach to objective-chance evidence in the courts. I argue that central to a more logical and effective rule against character evidence is 1) a proper understanding of objective-chance evidence as a particular category of character evidence, and 2) an “objective-chance exception” that replaces the rule against character evidence with a 403-type balancing for objective-chance evidence. In turn, these steps permit a proper interpretation of Rule 404 and a stricter adherence to the rule against character evidence. Finally, I examine the feasibility of an objective-chance exception, and I demonstrate broad and significant implications for minimizing error in case outcomes and reducing inequality based on race and economic disadvantage in the criminal justice system. An earlier version of this article can be found at the following address: https://ssrn.com/abstract=3664837.

The author of this Comment surveyed the lyrics of many current hip-hop artists, along with many articles and novels, to find just how popular and prevalent crimes are in in the hip-hop industry. Research led to the finding that the industry of hip-hop has become commercialized. Court transcripts of cases involving various hip-hop artists were used in order to exploit the path prosecutors take when seeking to admit evidence of defendant-authored lyrics. For many years now, prosecutors have had their way when bringing cases against defendants who happen to also be musical artists. Specifically, prosecutors have been able to maneuver their way around the Federal Rules of Evidence by admitting music videos and lyrics written by the defendant into trial. From putting a theoretical cap on the careers of artists in the hip-hop industry, to the belief that rappers actually engage in all the behavior that they write about in their lyrics, this Comment illustrates the dangers and biases that are reinforced when prosecutors are allowed to partake in this underhanded practice. While evidence of the defendant’s conduct is generally inadmissible, when using the evidence to prove something other than character, such as intent, motive, or as a confession, the evidence is often deemed admissible. Throughout my research, it was found that while some prosecutors often attempt to admit the character evidence for a reason such as motive, the underlying outcome is what they are actually after, to present the character of the defendant in a bad light. Once a jury hears lyrics of a defendant detailing how he “kicks in doors” or “catches bodies” or watches a music video in which the defendant plays a role in a murder, the character and reputation of the defendant is tarnished for the remainder of the trial. For reasons explained in this Comment, the author purposes that the determination of admitting lyrics or music videos of the defendant into trial become more in-depth by using lyrical experts and making the inquiry into the realism of the lyrics being offered more critical.

Studying evidence law as part of naturalized epistemology means using the tools and results of the sciences to evaluate evidence rules based on the accuracy of the verdicts they are likely to produce. In this brief chapter, we introduce the approach and address skeptical concerns about the value of systematic empirical research for evidence scholarship, focusing, in particular, on worries about the external validity of jury simulation studies. Finally, turning to applications, we consider possible reforms regarding eyewitness identifications and character evidence.

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This chapter, which focuses on the admissibility and evidential worth of character evidence, explains the definition of bad character under the Criminal Justice Act 2003 (CJA). It examines how bad character evidence of the defendant may be admitted through one of the ‘gateways’ under the Act. It reviews the evidential worth of the character evidence if admitted and explains the difference between propensity and credibility. The law on the admissibility of the bad character of non-defendant witnesses is explained and the reasons for a more protective stance highlighted. The chapter concludes with a review of the admissibility of good character evidence, governed by the common law.

In Chapter 4 of his book Character in the Criminal Trial, Mike Redmayne addresses a series of non-epistemic arguments against the use of bad character evidence. Redmayne is particularly successful ...

The traditional character evidence prohibition forbids the proponent from introducing evidence of a person’s misconduct as a basis for inferring the person’s subjective bad character and then inviting the jury to treat the character as circumstantial proof of the person’s commission of the charged crime. In the United States, that prohibition has special significance, since the Supreme Court has ruled that the Eighth Amendment Cruel and Unusual Punishment provision precludes status offense. Federal Rule of Evidence 404(b)(1) codifies the prohibition: “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” However, the very next Federal Rule subsection, 404(b)(2), reads: “This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence or mistake, or lack of accident.” That subsection challenges the prosecutor to identify a non-character theory of logical relevance to justify admitting testimony about an accused’s uncharged misconduct. The subsection is the most important provision of the Federal Rules of Evidence in criminal cases. The subsection generates more published opinions than any other provision in the Federal Rules. In a significant minority of states, errors in the admission of uncharged misconduct evidence are the most common ground for reversal in criminal cases. In the past half century, an emerging non-character theory, the doctrine of objective chances, has gained prominence in the United States. The seminal opinion is the 1915 British decision, R. v. Smith, the famous “Brides in the Bath” case. When the accused’s wife was found drowned in her bathtub, the accused claimed that her death was accidental. Over a character evidence objection, the trial judge permitted the prosecution to show that two other women whom the accused purported to marry also drowned in their baths. The court held that the evidence was admissible to show the objective improbability that so many accidents befell the accused. In a 1974 infanticide case in the United States, the Woods court cited and followed Smith. Today, under the doctrine, American courts permits prosecutors to introduce uncharged misconduct to prove the occurrence of an actus reus, to establish the accused’s mens rea, and to identify the accused as the perpetrator. The doctrine has become a mainstay of the government’s case in prosecutions for child abuse such as Woods, drug possession, and sexual assault as in Cosby. However, there has been a constant drumbeat of criticism by respected commentators. The criticism was voiced most recently in a 2018 law review article. The thrust of the criticism is that the doctrine lacks genuine non-character relevance. The critics argue that in the final analysis, uncharged misconduct admitted under the doctrine is simply bad character evidence in disguise. The thesis of this essay is that that criticism is unsound. Several years ago an article set out a statistical analysis of the doctrine. The analysis demonstrated that under conventional statistical theory, the application of the doctrine reduces the probability of an accident without including in the computation any variable for the accused’s subjective character. The current essay is intended to reinforce that analysis by presenting two doctrine of chances hypotheticals. One hypothetical involves the infamous serial killer Jeffrey Dahmer while the second involves the saintly Mother Teresa. The hypotheticals demonstrate that an assumption about the accused’s personal character is neither a sufficient nor a necessary condition for invoking the doctrine. After rebutting the criticism of the doctrine, though, the essay calls for reforms in the judicial administration of the doctrine. The critics are correct in warning that there is a thin line between the legitimate use of uncharged misconduct under the doctrine and verboten character reasoning. To reduce the risk of the misuse of the evidence admitted under the doctrine, the essay urges that: trial judges evaluating a government proffer should explicitly address the question of whether the prosecution has established an extraordinary coincidence, exceeding the ordinary incidence of the type of events that the accused has been involved in; the prosecution ought to be required to give the defense advance, pretrial notice of its intent to proffer uncharged misconduct evidence; and trial judges should give the jury much clearer limiting instructions on the permissible use of evidence admitted under the doctrine. The bottom line is that the reform efforts ought to focus on improving the way the doctrine is administered in the real world rather than attacking the theory underlying the doctrine.

My Last Hoorah!!!: This current article in the Criminal Law Bulletin is the last of 58 articles in total published on Evidence. The series began in 2005. An earlier similar but far less ambitious series of Evidence articles, 59 in total, appeared in the Criminal Law Bulletin from 1980 to 1990. After 45 years as an academic commentator on Evidence and Professor of Law, for ten years at Illinois, followed by 35 years in Miami, I retired from active teaching in May of 2019. I will continue to author the Handbook of Illinois Evidence and the Handbook of Federal Evidence. Summary of Proposed Rule Amendments: Over the course of the 57 prior articles in the current Evidence series, many specific proposals have been put forth to amend the Federal Rules of Evidence along with on occasion the Federal Rules of Civil or Criminal Procedure. These proposed rule changes are contained in rule numerical order at the conclusion of the article. Each proposed amended rule appears with a footnote corresponding to the article from which it is taken. Prospect for Fair Consideration: Over 45 years as an Evidence professor and commentator, along with my service first as Reporter to the Illinois Supreme Court Committee on Rules of Evidence, 1975-78, an unsuccessful effort to adopt rules of evidence in Illinois modelled on the Federal Rules of Evidence, the subsequent successful effort to Accomplish such task where I served as Special Advisor to a new Illinois Supreme Court Committee on rules of Evidence, 2008-2013, as well as my experience as Reporter to the successful effort to adopt rules of evidence by the United States Department of Labor, 1975-1980, together with observation of the rules enabling process as implemented over the years with respect to the Federal Rules of Evidence themselves, leads me to the firm conclusion that Mel Brooks was correct—“It’s good to be the King.” In the context of law reform, if you’re not on the Committee or other entity empowered to act in some capacity toward improvement, change, and especially reform, legal scholarship is about as likely to be influential as dropping a note in a “suggestion” box on the factory floor. If one is not a part and parcel of the establishment, i.e., the King, in New York terms—fuhgeddaboudit!!! Your voice will not be heard. Without a “seat at the table,” published scholarship, as well as judicial authority, moves invariably from the “suggestion” box into the “circular file.” Advisory Committee on Evidence Rules: Not surprisingly, when one looks back at what amendments have actually come forward from the Advisory Committee on Evidence Rules, they can, it is suggested, be characterized as modest improvements at the margin in already accepted noncontroversial areas thus having no real impact on the balance between the prosecution and defense in criminal cases. The Advisory Committee on Evidence Rules, reflecting its makeup of mostly judges, has shown by what it has proposed, what it has not proposed, and even directly in a comment in meeting notes, that it is highly influenced in its decision making by whether the Advisory Committee itself holds a firm conviction that its proposed amendment to the Federal Evidence Rules will sail through the enabling act process and not be subjected to actual Congressional scrutiny. Bold Congressional Action: Of course, the Advisory Committee on Evidence Rules acting pursuant to the rules enabling act is not the only way for evidence rule improvement, change, or especially reform to take place. Congress, with or without prodding from the Department of Justice, can and has enacted amendments to the Federal Rules of Evidence. The most significant subject matter areas of current concern involve the impact of the rules of evidence, particular character propensity evidence in prosecutions for illegal drugs, domestic violence, child molestation, and sexual battery. What are the chances of enactment of legislation that could make successful prosecution of such actions more likely? Zero!!! In the mid 1990’s, Congress added Rule 413-415 to the Federal rules of Evidence which permit now, subject to substantial limitation in practice, propensity evidence in child molestation and sexual battery prosecutions. Congress acted in spite of a Report dated February 1995 by the Judicial Conference of the United States—the Admission of Character Evidence in Certain Sexual Misconduct Cases, indicating unanimous opposition by all relevant actors, i.e., 40 judges, practitioners, and academics, except representatives of the Department of Justice. Moreover, in our current highly polarized society, Congress has substantial difficulty agreeing on the time of day, much less criminal justice reform, whether that be areas stated above or addressing the opioid epidemic. Prediction: Going forward given the makeup of the Advisory Committee on Evidence Rules as mostly judges, the political left leaning defense oriented academic community, and a polarized Congress, the prospect of change in evidence rules that strike a better, fairer balance between the prosecution and the defendant’s constitutional right to a fair trial thus facilitating prosecution of drug, domestic violence, child molestation, and sexual battery cases in the foreseeable future is once again—“Zero”.

In 1975, the Federal Rules of Evidence took effect. The basic policy thrust of the Rules was to simplify and liberalize the law of Evidence in federal court. In particular, as the Supreme Court has acknowledged, Federal Rule 402 was intended to deprive the courts of the power to either enforce or enunciate uncodified exclusionary rules. Yet, as Part I of this article demonstrates, in several lines of authority federal courts have relied on contextual interpretation to impose evidentiary restrictions that have no grounding in statutory text. The common fact pattern in these lines of authority is the following: One provision of the Federal Rules contains a restriction, a second provision is silent on the restriction, and the text of neither provision manifests a legislative intent to import the restriction from the first provision into the second. The question naturally arises as to what are the legitimate uses and limits of contextual construction. As Part II explains, the enactment of the Federal Rules roughly coincided with the emergence of the textualist school of statutory interpretation. For formal and practical reasons, textualists assert the primacy of text and caution against uncritical reliance on extrinsic legislative history material. Unlike extrinsic material, legislative text has the formal status of law; and extrinsic history materials are vulnerable to distortion from the influence of special interest groups. The diminished importance of extrinsic history has enhanced the importance of contextual arguments, that is, arguments based on other provisions in the same legislative scheme. After all, like the text being construed, the contextual provisions have the formal force of law. The question of contextual interpretation is not limited to the setting of the Federal Rules of Evidence. More broadly, it affects the construction of all legislation in the Age of Statutes. Part II uses the Federal Rule as a microcosm for exploring the concept of contextual interpretation. On the one hand, Part II identifies several perfectly legitimate uses of contextual interpretation. To begin with, the wording of one provision may be used to eliminate an ambiguity in the wording of a second provision. By way of example, the court may look to the character evidence prohibition codified in Rules 404-45 to inform the meaning of “unfair prejudice” in Rule 403. Moreover, a blanket prohibition on the admission of a certain type of evidence in one provision may necessitate a narrowing construction of another provision that would otherwise permit the introduction of that very type of evidence. Hence, the prohibition of the introduction of evidence of nolo contendere pleas in Rule 410 can require a limiting construction of Rule 801(d)(2)(A) on statements or admissions of a party-opponent. However, when neither of those uses of context is in play, with one exception a court may not simply import a restriction from one provision of the Federal Rules into another. Doing so exceeds the interpretive power of context. Subpart II.B proposes that the importation is justifiable only in the exceptional situation in which the extrinsic legislative history contains an extraordinarily powerful showing of a broad legislative intent to bar the admission of a particular type of evidence, not a narrower intent to prescribe a restriction in one provision of the Federal Rules. Part III uses the standard proposed in subpart II.B to critically evaluate the three lines of authority discussed in Part I. Part III concludes that two of the three lines are flawed; one does not manifest the right type of intent, and the second relies on extrinsic history that is too mixed and conflicted to qualify as an extraordinarily powerful showing of intent. Only one line of authority is based on extrinsic history that includes compelling evidence of an intent to prevent the admission of a certain type of evidence under any theory. Hopefully, this article will not only prevent misreadings of the Federal Rules but also contribute to the larger debate over the proper role of contextual interpretation in the Age of Statutes.

This chapter discusses the admissibility of evidence of bad character in criminal cases under the Criminal Justice Act 2003, namely: the admissibility of the bad character of a person other than the defendant and the requirement of leave; the admissibility of evidence of the bad character of the defendant under various statutory ‘gateways’, including the gateway by which evidence may be admitted if it is relevant to an important matter in issue between the defendant and the prosecution; and safeguards including the discretion to exclude evidence of bad character and the judge’s power to stop a case where the evidence is contaminated. Procedural rules are also considered, as is the defendant’s right to challenge evidence of bad character.

This chapter discusses the admissibility of evidence of character. A number of factors govern the admissibility of character evidence, including whether the proceedings are civil or criminal and whether the evidence relates to the character of a party or non-party. It is also necessary to consider the nature of the character evidence in question. It may relate to either good or bad character and, in either event, may constitute evidence of a person’s actual disposition, that is his propensity to act, think, or feel in a given way; or evidence of his reputation, that is his reputed disposition or propensity to act, think, or feel in a given way. Thus, the character of a person may be proved by evidence of general disposition, by evidence of specific examples of his conduct on other occasions (including, in the case of bad conduct, evidence of his previous convictions), or by evidence of his reputation among those to whom he is known.

Chapter 10 begins with a discussion of the relevance of evidence of character. It then deals with the admissibility of character evidence in civil and criminal proceedings. In civil cases, the admissibility of evidence of a party’s bad character is governed simply by the test of relevance. In criminal proceedings, the entitlement of a defendant to a direction on the significance of his or her good character is taken seriously. The Criminal Justice Act 2003 now provides a comprehensive statement of the law on evidence of bad character in criminal proceedings.

Policy issues compete for the attention of political actors, and the size of the agenda an issue can occupy is largely determined by the way in which it is defined. This logic constitutes a simple agenda-setting model in which factors related to the participants in the policy process and their context influence the attention a single issue receives after being problematised. In order to be able to apply this model to the construction of a whole agenda, we need to add an intermediate step. This study proposes to do so by incorporating the notion of issue character and offers an empirical application of the adapted model to the European Council, a crucial informal player in European Union (EU) agenda setting. Using a dimensionality reduction technique, the composition of the agenda is broken down to two constitutive dimensions - core vs. non-core themes of government and economic vs. non-economic character. Since the first structuring element is in line with existing knowledge and the role expectations for the European Council, the analysis concentrates on the second type. Changing saliency levels of the economic issue character of the agenda are used as a dependent variable in a model, including predictors related to the nature of the institution and contextual factors. The results show that leftist European Council party ideology and growing government deficit in the EU contribute to the increasing prominence of the economic dimension, which in turn explains rising levels in attention to various issues, especially of the non-core themes type. © 2015 European Consortium for Political Research.