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
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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)