Criminal Corporate Character

In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit the use of this information in a prosecution for such crimes. The reasons for this prohibition are based in historical anomalies, a mistaken understanding of corporate function, and a misplaced anthropomorphism of the corporation. This combination of errors has resulted in the questionable practice of excluding relevant evidence in cases where the justifications for exclusion are either nonexistent or weak and the benefits of admitting the evidence clearly prevail. This Article demonstrates the fallacies of this continued practice and argues in favor of change. Specifically, this Article shows why evidence concerning the character of a corporation should be allowed in criminal settings to prove that the corporation acted in conformity with that character on the date in question. Courts so far have not given much consideration to the question and have simply assumed that the character evidence rules apply to corporations. I base my objections to this practice on the goals of corporate criminal liability, the inherent weaknesses of the character evidence rules generally, and the way in which corporate structure exacerbates those weaknesses. Lawyers should argue that the character evidence rules do not apply to corporations, judges should decide accordingly, and legislatures should amend both the Federal Rules of Evidence and their state counterparts to make it unambiguously clear that corporations are not covered by the same principles regarding character as individuals. INTRODUCTION 1294 I. CORPORATE CRIMINAL LIABILITY 1296 * Assistant Professor, Baruch College Zicklin School of Business Department of Law ; M.B.A., University of Chicago Booth School of Business; J.D., Cornell Law School. I would like to thank the faculty of the Baruch College Zicklin School of Business Department of Law and Kennisha Austin, Akilah Folami, Irina Manta, Ashira Ostrow, Tony Robinson, James Sample, Greg Shill, Judd Sneirson, Jacob Stevens, and my research assistant, Beverly Nwanna. I am grateful to the Maurice A. Deane School of Law at Hofstra University and the Rutgers School of Law-Newark, as well as their staffs, for support during my research. 1 Wagner: Criminal Corporate Character Published by UF Law Scholarship Repository, 2013 1294 FLORIDA LAW REVIEW [Vol. 65 A. The Purpose of Corporate Criminal Liability 1301 B. Achieving the Goals of Corporate Criminal Liability .... 1303 C. Corporations and Personhood 1306 II. CORPORATE DECISION MAKING 1307 III. CHARACTER EVIDENCE 1310 A. The Nature of Character Evidence 1310 B. Arguments Against Admitting Character Evidence ..... 1312 C. Arguments for Admitting Character Evidence 1315 D. Applying Character Evidence Rules to Corporations .... 1318 E General Proposals to Change the Rules 1319 IV. CHARACTER EVIDENCE AS APPLIED TO CORPORATIONS ..... 1320 CONCLUSION 1328