Academic journal article Notre Dame Law Review

The Accused's Bad Character: Theory and Practice

Academic journal article Notre Dame Law Review

The Accused's Bad Character: Theory and Practice

Article excerpt

[T]her can be no great smoke arise, but ther must be some fire, no great reporte without great suspition.

--John Lyly (1)


Propensity character evidence has long been a source of consternation for jurists and policymakers in the United States and the United Kingdom. The two systems have struggled to strike an appropriate balance between the relevant nature of such evidence and its prejudicial effects. Until the twenty-first century, both systems had settled upon an exclusionary approach: all propensity character evidence as such was considered inadmissible. However, the Criminal Justice Act 2003 radically altered this landscape in making British character law inclusionary: it now allows prosecutors to adduce evidence of a defendant's bad character provided it passes through one of seven gateways. (2) While the particulars will be addressed later in this Note, (3) suffice it to say that the Act broadly expanded the role of character evidence in criminal prosecutions, as compared to previous British law and current law in the United States. However, a closer look indicates that United States law, in practice, already provides plenty of methods for a competent prosecutor to introduce any piece of propensity character evidence she wishes. In this sense, Britain's recent inclusionary bad character law may be only nominally different from the exclusionary counterpart that the United States has been utilizing all along.

This Note argues that the Criminal Justice Act, with its subsequent revisions, sets forth the best statutory approach to the issue of bad character evidence in criminal prosecutions. However, that is not to say that the British approach is superior. Indeed, the flexibility that inheres in the U.S. system has allowed it to evolve into a body of law that mirrors the British law under the Criminal Justice Act, despite statutory language that would suggest otherwise. Part I will establish a baseline, providing a factual overview of the statutory differences between American and British bad character evidence law. Part II will examine the most common justifications for the United States' ostensibly exclusionary approach to evidence of the accused's bad character and will indicate that the better approach would be one of inclusion. Part III concludes that in practice, the United States is already there, through use and misuse of Federal Rule 404(b). Part IV considers recent changes relating to an accused's character evidence in relation to rape and child molestation and points out that the legal changes have not led to changes in practice or results. It also underscores the futility of restricting the legal changes to such a small portion of criminal law. In light of the "true" state of American character evidence, Part V concludes that the Criminal Justice Act could almost as easily be a description of U.S. law as a proclamation of British law. All told, the United States, whose approach is only nominally different from the British approach, reaches the best compromise possible in its propensity character evidence scheme.


The United States, through Federal Rule of Evidence 404, disallows all propensity character evidence as such. (4) Britain, however, with the Criminal Justice Act of 2003, generally allows such evidence. (5) The details of the United States and British approaches to evidence of the accused's bad character wit! here be addressed in this Part.

The starting point for any analysis of U.S. evidence law is Federal Rule of Evidence 403, a general rule applicable to all forms of evidence. (6) It mandates that a judge weigh the probative value of any piece of evidence against factors such as the danger of unfairly prejudicing a jury, confusing the jury as to the issues of the case, overtly misleading the jury, or inhibiting the speedy and smooth flow of a trial. (7)

Rule 404 is the first rule to directly address the admissibility of character evidence. …

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