The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence

The English common-law courts gave birth to the character evidence prohibition and helped spread the prohibition throughout the common-law world. Under the prohibition, a prosecutor may not introduce testimony about an accused’s uncharged misconduct on the theory that the uncharged misconduct shows the accused’s propensity to commit crimes and that in turn, the propensity increases the probability that the accused committed the charged offense. According to the orthodox version of the prohibition, the government may introduce the testimony only if the prosecutor can demonstrate that the evidence is logically relevant on a non-character theory, that is, a theory that does not entail an assumption about the accused’s personal, subjective bad character.Today, though, in much of the common-law world, by virtue of case law and legislation the prohibition is no longer in effect as a rigid, categorical rule. Rather, the courts may admit uncharged misconduct as character evidence when, in their view, the character trait has special relevance or there is striking similarity between the charged and uncharged offenses. In contrast, in the United States the prohibition survives largely intact as a categorical rule. Indeed, the general prohibition is codified in Federal Rule of Evidence 404(b); and the vast majority of states have a statute or court rule modeled after 404(b). Yet, today there is an ambivalence in the American law governing the admissibility of uncharged misconduct:In federal practice and three handfuls of states, the prohibition has been selectively abolished. For example, Federal Rules 413-14 abolish the prohibition in prosecutions for sexual assault and child molestation. Congress enacted the rules over the vocal opposition of both the Judicial Conference and the A.B.A. and despite empirical data indicating that revidivism rates for those crimes are lower than the rates for many other offenses such as property crimes.At the same time, in other types of prosecutions there is a marked trend to toughen the standards for admitting uncharged misconduct evidence. Substantively, a number of American jurisdictions have tightened the requirements for both the plan and “res gestae” theories for introducing uncharged misconduct. Procedurally, several jurisdictions have imposed new pretrial notice requirements, demanded that the prosecution explicitly articulate a complete, non-character theory of relevance on the record, and forbidden trial judges from giving “shotgun” jury instructions which do not specify the particular non-character theory that the prosecution is relying on. The distinction between character and non-character theories can be a thin line, and all these steps have been taken to ensure that any uncharged misconduct admitted possesses genuine non-character relevance and is used for only that purpose during deliberations. Some find the current ambivalence of American law dissastifying and urge that American jurisdictions resolve the tension by following the example of other common-law jurisdictions that have abandoned a general, rigid prohibition. However, doing so would be at best premature. There has yet to be a comprehensive investigation of the trial-level impact of Rules 413-14. Moreover, the most recent psychological research calls into question the validity of inferring a person’s character or disposition from a single act or a few instances of conduct–which is what Rules 413-14 authorize a jury to do. Finally, American courts should be especially solicitous of the policy protecting accused from being punished for their bad character. In the United States, that policy has special importance; the Supreme Court has held that the Eighth Amendment ban on cruel and unusual punishment forbids status offenses. If an American jury succumbed to the temptation to punish an accused for his or her past – nothwithstanding a reasonable doubt about their guilt of the charged offense – the conviction would impinge on a policy with constitutional underpinning.