The American Version of the Character Evidence Prohibition: What Is Not Prohibited Is Permitted

Consider this theory:

Della D, charged with the murder of Valiant, has claimed that her killing of Valiant V was accidental, that it was not deliberate. Given this, the prior murder of another person is admissible -- to negative Della's claim of accident or lack of intent. There is no violation of the character evidence rule because the prior murder is offered to show, not an act of Della D in conformity with her murderous character, but something else -- specifically, DD's state of mind or intent when the killed Valiant V. See FRE 404(b), 2d sentence:

[Evidence of other crimes, wrongs, or acts] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ...

What do you think of this argument?

You could be forgiven if you found this theory strange. You might think, "Aren't the prior murders being offered to show that DD had a propensity to kill deliberately and to show that she killed deliberately this time as well, aren't they being offered to show that DD had the mind of a murderer, a murderous disposition?"

These are very good questions. Furthermore, I have no good answers to argument that is embedded in such questions. Be that as it may, the theory I have described has a considerable amount of legal currency.

It is arguable that this theory -- evidence on matters such as accident and mistake is not character evidence -- it is arguable that this proposition can be extracted from the following general principles, which are now very well-established principles (in the U.S.):

The character evidence rule prohibits only the use of propensity to show conduct. FRE 404(a).

The character evidence rule prohibits the use of other acts of a person only when the other acts of a person are offered to show propensity in order to show that person’s conduct. FRE 404(b).

These two general principles generate the following corollaries:

One bottom line: to the extent that the admissibility of evidence depends on the character evidence rule alone, the admissibility of other acts depends entirely on the purpose for which other acts are offered in evidence.

Hence, if an act is offered to show "accident" or "lack of accident" and if "accident" or "lack of accident" is not conduct, then the use of the act to show or to negative accident does not violate the character evidence rule. [SEE ABOVE CHART] This is the principle presupposed by the holding of the S. Ct. in Huddleston. See also FRE 404(b), 2d sentence:

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 ...

CARPING QUESTION: IF "ACCIDENT" ISN'T "CONDUCT," WHAT IS IT?

A NOT-UNCOMMON ANSWER: "Accident" means "inadvertence," which is a mental state and a mental state -- it is argued or supposed -- is not conduct or an act.