Don’t you know there are certain types of people who commit crimes more often than other people? Legislatures and courts employ this logic when seeking to admit propensity evidence. Isn’t society better off, they argue, convicting a few innocent defendants so that society is more secure from those bad people who need to be in prison? Supporters of admitting propensity evidence have argued that their cases are often difficult to prove because of the unique circumstances of certain cases, i.e., they typically involve swearing matches between the victims and defendants. Thus, propensity evidence allows the defendant’s other acts to bolster the instant victim’s credibility and lessen the chance of an acquittal. Supporters of propensity evidence believe this encourages victims to proceed with charges against the defendant. This is a song frequently sung by sexual assault prosecutors and domestic violence prosecutors. But see, Kenneth J. Melilli, The Character Evidence Rule Revisited, 4 BYU L. REV. 1547, 1587 (1998) (“[T]he claim that sex offenses are singularly difficult to prove is unsubstantiated. Many other crimes (such as homicides, burglaries of unoccupied premises, thefts of unguarded property and so called victimless crimes) do not offer the government even the testimony of the victim, and sex offense prosecutions are frequently aided by medical and scientific evidence.”)
Factually, the problem with these arguments is that past behavior is actually a poor basis for predicting future behavior. Miguel A. Méndez & Edward J. Imwinkelried, People v. Ewoldt: The California Supreme Court’s About-Face on the Plan Theory for Admitting Evidence of an Accused’s Uncharged Misconduct, 28 LOY. L.A. L. REV. 473, 496 (1995); David P. Bryden & Roger C. Park, “Other Crimes” Evidence in Sex Offense Cases, 78 MINN. L. REV. 529, 561-62 (1994). Propensity evidence proponents point to the the trait theory which was championed by Gordon Allport. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1, 26 (1986-87). That theory viewed a person’s general character as a reliable predictor of conduct across widely differing situations. However, in the 1960’s Walter Mischel introduced the competing theory of specificity or situationism. Id. at 27. Mischel attacked the trait theory by pointing to studies showing a lack of cross-situational consistency. Those studies demonstrated that “moral conduct in one situation is not highly correlated with moral conduct in another.” Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987) (citing Burton, Generality of Honesty Reconsidered, 70 PSYCHOLOGY REV. 481 (1963)) In light of the available studies, we can have little confidence in the construct of character as a predictor of conduct. 22 C. WRIGHT & K. GRAHAM, §5239 Although some psychologists still subscribe to a modified version of the trait theory, Crump, How Should We Treat Character Evidence Offered to Prove Conduct?, 58 U. COLO. L. REV. 279, 283 (1987).
The problem with such arguments legally is that they deny due process of law. The proscription against admitting propensity evidence is directed against the idea that when it is shown that a person committed a crime on a former occasion there arises an inference that he has a disposition to commit crime and therefore committed the crime with which he is now charged. Huddleston v. United States, 485 U.S. 681, 685 (1988) (commenting that propensity evidence may carry risk of unfair prejudice to defendant); Spencer v. Texas, 385 U.S. 554, 570 (1967) (Warren, C.J., dissenting) (noting that use of prior convictions evidence to show action in conformity “needlessly prejudices” accused); Boyd v. United States, 142 U.S. 450, 458 (1892) (discussing prejudice accruing to defendant when court admits propensity evidence); United States v. Hines, 955 F.2d 1449, 1454 (11th Cir. 1992) (commenting that character evidence has strong potential for unfair prejudice); United States v. Peden, 961 F.2d 517, 520 (5th Cir.) (asserting that propensity evidence is likely to prejudice jury and blind it to real issue of whether accused is guilty of crime charged), cert. denied, 506 U.S. 945 (1992); People v. Zackowitz, 172 N.E. 466, 467 (N.Y. 1930) (Cardozo, C.J.) (noting that propensity evidence carries appeal to prejudice and passion); Rex v. Smith, 11 Crim. App. 229, 237 (Crim. App. 1915) (explaining why propensity evidence is inadmissible); Regina v. Oddy, 169 Eng. Rep. 499, 502 (Cr. Cas. Res. 1851) (Lord Campbell, C.J.) (rejecting propensity evidence because it prejudiced accused as “bad man”).
Almost since Wisconsin became a state, Wisconsin courts have held that evidence of uncharged misconduct evidence is inadmissible to establish the defendant’s general character, disposition, or criminal propensity. Fossdahl v. State, 89 Wis. 482, 485 (1895); Boldt v. State, 72 Wis. 7, 15-16 (1888). This rejection of other act evidence in Wisconsin continues today. There is no presumption that other acts evidence is admissible. The presumption under Rule 404(b) is against admissibility. State v. Scheidell, 227 Wis.2d 285, 294, 595 N.W.2d 661, 667(1999), reversing, 220 Wis.2d 753, 584 N.W.2d 897. See also United States v. Simpson, 479 F.3d 492, 497 (7th Cir. 2007). Today, the assumption is other act evidence should be excluded, not admitted, at trial. Scheidell, supra. Wisconsin courts were thus in accord with pre-Revolutionary War colonial courts and English courts. Natali and Stigall, “Are you going to arraign his whole life? How Sexual Propensity Evidence Violates the Due Process Clause;” 28 Loy. U. Chi. L.J. 1, 15 (1996); Harrison’s Trial, 12 How. St. Tr. 834, 864 (Old Bailey 1692)(“Hold, what are you doing now? Are you going to arraign his whole life? Away, away that ought not be; that is nothing to the matter.”).
Three centuries ago, there was extremely liberal admissibility of uncharged misconduct evidence during the era of the Star Chamber. Reed, Trial by Propensity: Admission of Other Criminal Acts Evidenced in Federal Criminal Trials, 50 U. Cin. L. Rev 713 716 (1981); Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, 6 Ariz. L. Rev. 212 (1965). The view of letting in all past ill deeds was wholly in accord with the chamber’s inquisitorial system.
Contrary to the view of the Star Chamber, the United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant’s evil character to establish the probability of his guilt and strongly suggests that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause. Hurtado v. California, 110 U.S. 516, 528 (1884) (stating that the ban against propensity evidence has been preserved by the courts for so long that it “must be taken to be due process of law”); Mulkovich v. State, 73 Wis.2d 464, 471-72, 243 N.W.2d 198(1976)(civilization has recognized the principle that evidence should be confined to the offense charged and bad character should not be proved at trial); Bell v. Texas, 385 US 554, 572-74(1967)(conc. and diss. op. of Warren, C.J.); Michelson v. United States, 335 U.S. 469, 476 (1948) (“The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”); see also Panzavecchia v. Wainwright, 658 F2d 337(5th Cir. 1981); Kenneth J. Melilli, The Character Evidence Rule Revisited, 4 BYU L. REV. 1547, 1558 (1998). See generally Thomas J. Reed, The Development of the Propensity Rule in Federal Criminal Causes, 1840–1975, 51 U. CIN. L. REV. 299 (1982).
Due process is transgressed by a state rule that “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Medina v. California, 505 US 437, 445-46(1992). Evidentiary rules that are deeply rooted in the common law tradition can be fundamental to a fair trial. Brinegar v. United States, 338 U.S. 160, 174 (1949). So it is with the principle prohibiting the introduction of evidence of criminal disposition or propensity. The use of “other acts” evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than three-hundred years. See e.g., McKinney v. Rees, 993 F2d 1378, 1380(9th Cir. 1993).
Prohibiting the admission of propensity evidence is essential to a fair trial. To determine whether a rule is essential to a fair trial, the Court often examines the history of the rule and whether it is universally applied. In Brinegar v. United States, 338 U.S. 160 (1949), the Court emphasized this principle, stating:
Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystalized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.
Id. at 174; see also In Re Winship, 397 U.S. 358 362 (1970), quoting Brinegar. Further, near universal adherence to a rule “reflect[s] a profound judgment about the way in which law should be enforced and justice administered.” Winship, 397 U.S. at 361-62, quoting Duncan v. Louisiana, 391 U.S. 145, 155 (1968). For example, the Court in Pacific Mutual Life Insur. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 1041-43 (1991), found that imposing reasonable punitive damages does not violate the Due Process Clause because those damages are deeply rooted in Anglo-American law and are universally applied by state and federal courts. Cf. Bowers v. Hardwick, 478 U.S. 186 (1986) (sodomy not protected by Due Process Clause because it is not deeply rooted in American jurisprudence).
A primary reason for the rule against propensity evidence is to ensure that the accused is not found guilty merely because a jury might think that he or she is likely to have committed a crime. Regina v. Oddy, 169 Eng. Rep. 499, 502 (Cr.Cas.Res. 1851) (“evidence of the prisoner being a bad man, and likely to commit the offences there charged” is inadmissible). A jury will think someone has committed a crime when a case is decided not on the facts proved to a jury, but on emotional pleas to a jury to decide a case. In Boyd v. United States, 142 U.S. 450 (1892), the Court held evidence of other crimes inadmissible. As the first Justice Harlan wrote for the Court,
Proof of [other crimes] only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules proscribed by law for the trial of human beings. . . .
Id. at 458. In Michelson v. United States, 335 U.S. 469, 475-76 (1948), the Court held that “[t]he state may not show defendant’s prior trouble with the law . . . – not . . . because character is irrelevant; on the contrary it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” (Footnote omitted). See also Spencer v. Texas, 385 U.S. 554, 570 (1966) (Warren, C.J., dissenting) (“the use of prior-convictions evidence in these cases is fundamentally at odds with traditional notions of due process . . . because it needlessly prejudices the accused without advancing any legitimate interest of the State” Marshall v. United States, 360 U.S. 310, 312 (1959) (reversing a conviction because the jury was exposed to news reports of the defendant’s prior convictions, “evidence of a character which the trial court ruled was so prejudicial it could not be directly offered into evidence”).
Given its potential to cause extreme prejudice, it is clear that propensity evidence can fatally infect a state criminal defendant’s trial with unfairness. Benjamin Cardozo, writing as Chief Justice of the New York Court of Appeals, framed the issue rather well:
There may be some cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of a milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. “The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge.” Wigmore, Evidence vol. 1, § 194, and cases cited. People v. Zackowitz, 254 N.Y. 192, 198, 172 N.E. 466, 468 (1930).