In this paper, I argue that courts should not treat civil parties in quasi-criminal cases the same as criminal defendants because character evidence can be misused as propensity character evidence. Part II of this paper discusses the bar against admitting character evidence. Part III deals with the split among courts as to whether this rule can apply in quasi-criminal cases. Part IV of this paper concludes that courts should resolve this split and refrain from treating civil parties in quasi-criminal cases as criminal defendants because the risk of prejudice does not support this use of the Federal Rules of Evidence.
II. The Inadmissibility of Character Evidence
A. Before the Federal Rules
Federal Rule of Evidence 404 deals with the admissibility of character evidence. FRE 404(a)(1) lists the prohibited uses of character evidence, and states that “Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”1 This concept of “propensity character evidence” has been defined as the use of evidence at trial of either a person's character or a person's trait of character to prove that he or she has a tendency to act in a specific manner.2 Thus, if a person has a tendency to act in a certain way, it's more likely than not that the person acted in conformance with that tendency while committing a bad act.
This concept now embedded in the Federal Rules of Evidence can trace its philosophical underpinnings in prerevolutionary England. Before the 17th century, English courts had very few limitations on what evidence could be admitted into court.3 This court system, which was created in the wake of Norman invasion in 1066, did not ...
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...470 F. 2d 432, 434-5 (D.C. Cir. 1972).
Thomas J. Reed, Trial by Propensity: Admission of Other Criminal Acts Evidenced in Federal Criminal Trials, 50 U. Cin. L. Rev. 713, 716 (1981).
Glen Weissenberger, Making Sense of Extrinsic Act Evidence: Federal Rule of Evidence 404(b), 70
Iowa L. Rev. 579, 583 n.17 (1985).
Reed, supra note 28, at 716-17.
Weissenberger, supra note 29, at 579, 603 n.75.
Reed, supra note 28, at 717.
People v. Shea, 41 N.E. 505, 511 (1895).
Weissenberger, supra note 75, at 603.
People v. Molineux, 61 N.E. 286, 302 (1901).
Boyd v. United States, 142 U.S. 450 (1892).
Fed. R. Evid. 404(a) advisory committee's note.
Fed. R. Evid.404.
Christopher W. Behan, When Turnabout Is Fair Play: Character Evidence and Self-Defense in Homicide and Assault Cases, 86 Or. L. Rev. 733, 746 (2007).
Fed. R. Evid. 403.
SEC v. Peters, 978 F.2d 1162, 1170 (10th Cir. 1992).