Character and Credibility: A Proposal to Realign Federal Rules of Evidence 608 and 609

Villanova Law Review, Dec 1992

By Robert D. Okun, Published on 01/01/92

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Character and Credibility: A Proposal to Realign Federal Rules of Evidence 608 and 609

Robert D. Okun, Character and Credibility: A Proposal to Realign Federal Rules of Evidence Character and Credibility: A Proposal to Realign Federal Rules of Evidence 608 and 609 Robert D. Okun 0 0 Thi s Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. For more information , please contact - 1992] CHARACTER AND CREDIBILITY: A PROPOSAL TO REALIGN FEDERAL RULES OF EVIDENCE 608 AND 609 ROBERT D. OKUN* I. INTRODUCTION One of the bedrock principles of Anglo-American jurisprudence is that we try cases rather than people.I In accord with this principle, a jury must consider only the facts of a particular case, not a defendant's general character or prior bad acts, in reaching a proper verdict. 2 This principle has been codified in the Federal Rules of Evidence, which prohibit the admissibility of prior crimes or bad acts to prove the general character of a person or to establish the propensity of a person to commit crimes or bad acts. 3 It also is axiomatic, however, that the primary purpose of a trial is to discover the truth. 4 This axiom likewise finds expression in the Federal * Former Assistant United States Attorney, United States Attorney's Office for the District of Columbia. B.A. 1981, University of Pennsylvania; J.D. 1984, Harvard Law School. The views expressed in this Article are solely those of the author and do not represent the opinion of the United States Attorney's Office for the District of Columbia. 1. See, e.g., People v. Allen, 420 N.W.2d 499, 504 (Mich. 1988) ("[I]n our system of jurisprudence, we try cases, rather than persons, and thus a jury may look only to the evidence of the events in question, not to defendants' prior acts in reaching its verdict.") (citing United States v. Mitchell, 2 U.S. (2 Dall.) 348, 357 (1795)). 2. See id. The rationale for this principle is twofold. As one commentator has noted: On a theoretical level, we base our criminal justice on the precept that a person will be convicted only for what he does, not who he is or what he has done prior to the events in question. On a practical level, we will not run the risk of convicting the innocent that a propensity theorem entails. H. Richard Uviller, Evidence of Characterto Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845, 868 (1982). 3. The prohibition against this type of propensity evidence is found in Rule 404(b) of the Federal Rules of Evidence. The Rule states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. FED. R. EvID. 404(b). 4. See, e.g., Funk v. United States, 290 U.S. 371, 381 (1933) (stating that -[t]he fundamental base on which all rules of evidence rest-if they are to rest (533) [Vol. 37: p. 533 Rules of Evidence, which provide that the rules should be interpreted "to the end that the truth may be ascertained and proceedings justly determined."' 5 Consistent with this provision, the Federal Rules of Evidence mandate that all relevant evidence be admissible, except as otherwise proscribed by the rules, the Constitution or congressional enactments .6 Thus, the Federal Rules of Evidence reflect two important jurisprudential principles that do not always live in peaceful coexistence. On the one hand, the rules are designed to maximize the amount of relevant information we provide to our triers of fact, on the ground that juries (and judges) should consider all relevant information when determining what actually occurred in any given case. On the other hand, through provisions such as the prohibition against propensity evidence, the rules also are designed to limit the amount of information we provide to our triers of fact, because certain information, though logically relevant, is likely to be given too much weight, particularly when the triers of fact are jurors rather than judges. 7 The uneasy coexistence of these competing principles can be seen in the interplay between the prohibition against using prior bad acts to prove propensity and the provisions of Federal Rules of Evidence 608 and 609(a), which allow the use of certain prior bad acts and criminal convictions to impeach the credibility of a defendant testifying on his or her own behalf,8 As presently constituted, Rule 609(a)(2) (...truncated)


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Robert D. Okun. Character and Credibility: A Proposal to Realign Federal Rules of Evidence 608 and 609, Villanova Law Review, 1992, Volume 37, Issue 3,