assignments

The Character Evidence Rule: Review & Summary of Salient Features
Advanced Evidence, ---- Semester, ----
Professor Peter Tillers, Cardozo School of Law

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1. The Character (Propensity) Rule(s) in General

Review People v. Zackowitz (1930)

"Circumstantial" Character Evidence: Federal Evidence Rule 404 & Federal Evidence Rule 405

Character to Show Credibility (Impeachment & Rehabilitation): Federal Evidence Rules 607, 608 & 609

2. History of the Character Evidence Rule

B. Landrum, "Military Rule of Evidence 404(b): Toothless Giant of the Evidence World," Mil. L. Rev. 271 (1995)

3. Orthodox Views of the Character Evidence Rule

Wigmore's Treatise, Volume 1, з57 (1983, 4th ed.; 1st edition was published in 1904)
People v. Zackowitz (1930)
Michelson v. United States (1948)

4. Character to Show Intent, Absence of Mistake, and Similar Matters

Federal Evidence Rule 404(b)
State v. Rives (1939)
Marshall v. Commonwealth (1972)
State v. Maestas (1974)
Commonwealth v. Tirado (1977)
Hendricks v. Commonwealth (1977)
Vanlue I (Wisc. Ct. App. 1978)
Vanlue II (Wisc. S. Ct. 1980)
United States v. Brown (1989)

5. Use of Character to Impeach

Federal Evidence Rules 607, 608, 609 & 610

United States v. Abel

6. Racial & Ethnic Prejudice to Show Conduct

Three California Cases: Hinojosa, Kelvin L. & Lemelle
Dawson v. Delaware (1992)
Wisconsin v. Mitchell (1993)

7. Habit and the Character Evidence Rule

Federal Evidence Rule 406
McCormick's Influential Definition of "Habit"
Evidence of Pattern of Police Violence: People v. Memro (1985)
State v. Radziwil (1989)
State v. Kately (1994)

8. Political Beliefs and Other Beliefs and Values to Show Conduct

United States v. Baumgarten (1975)
United States v. Giese (1979)
Dawson v. Delaware (1992) (see з5 above)
Wisconsin v. Mitchell (1993) (see з5 above)
United States v. Thomas (1996)
United States v. Rosenberg (1986)
Boyle v. Johnson (1996)
Barnes v. City of New York (2002)
Extract from P. Tillers, "Mapping Inferential Domains," 66 B.U. L. Rev. 883 (1986) (focus on discussion of Ronald Reagan)

9. Background Evidence about Witnesses and Parties

State v. Stokes (1974)
People v. Wagner (1975)

10. Character of Nonparties

United States v. Dimberio (2001)

11. Attacks on the Character Rule & Rebuttals

Department of Justice, Office of Legal Policy, "СTruth in Criminal Justice' Series Office of Legal Policy: The Admission of Criminal Histories at Trial," 22 U. Mich. J.L. Ref. 707 (1989)

Roger Park, "Proving the Case: Character and Prior Acts: Character Evidence Issues in the O.J. Simpson Case -- or, Rationales of the Character Evidence Ban, with Illustrations from the Simpson Case," 1966 U. Colo. L. Rev. 747 (1996)

Peter Tillers, "What Is Wrong with Character Evidence?," 49 Hastings L.J. 781 (1998)

Empirical Studies of Character Evidence:

Miguel Mendez, "California's New Law on Character Evidence: Having Code Section 352 and the Impact of Recent Psychological Studies," 31 U.C.L.A. L. Rev. 1003 (1984).

12. Character Evidence in Sex Crime Cases

A. Character of Victim

Common Law:

People v. Johnson (1895)
Rice v. State (1895)
State v. Romero (1906)
State v. Wood (1942)
People v. Bastian (1951)
Commonwealth v. Gardner (1966)
Wigmore's Treatise зз62 & 62.1 (1983 ed.)
FRE 404(a)(2) & Advisory Committee Note

Rape Shield Reform Movement:

Pope v. Superior Court (1976) (reform of rules by judicial decision)
FRE 412 & legislative history
Tillers (in Wigmore's Treatise) on Rape Shield Reform Movement

B. Character of Accused

Case Law

People v. Oliphant (1976)
McMichael v. Nevada (1978)
State v. Doporto (1997)

Utah R. Evid. 404(b)(as amended, 1998)
Paul G. Cassell & Evan S. Strassberg, "Evidence of Repeated Acts of Rape and Child Molestation: Reforming Utah Law to Permit the Propensity Inference," 1998 Utah L. Rev. 145
Utah v. Nelson-Waggoner (1992)

Legislation

Federal Rules of Evidence 413-415

Missouri Rev. Stat. з566.025

California Evidence Code з1108 (1996)

Utah R. Evid. 404(b) (as amended, 1998)

Controversy over Proposals to Liberalize Admissibility of Evidence of Other Sexual Misconduct in Federal Sex Crime Trials & in Other Cases Involving Claims of Sexual Misconduct:

David Karp, Senior Counsel, Office of Policy Development, U.S. Dept. of Justice, "Evidence of Propensity and Probability in Sex Offense Cases and Other Cases," 70 Chi-Kent L. Rev. 15 (1994)

Edward Imwinkelried, "Some Comments about Mr. David Karp's Remarks on Propensity Evidence," 70 Chi.-Kent L. Rev. 37 (1994)

David Karp, "Response to Professor Imwinkelried's Comments," 70 Chi.-Kent L. Rev. 49 (1994)

Report of Judicial Conference of the United States (Feb. 9, 1995)

Cf. Paul G. Cassell & Evan S. Strassberg, "Evidence of Repeated Acts of Rape and Child Molestation: Reforming Utah Law to Permit the Propensity Inference," 1998 Utah L. Rev. 145.

13. Present Status, the Purpose, and the Future of the Character Evidence Rule(s)

Tillers' "Remarks" on the Character Evidence Rule, Wigmore's Treatise з54.1 (1983 revision)

Extract from P. Tillers, "Mapping Inferential Domains," 66 B.U. L. Rev. 883 (1986) (see з6 above; focus on discussion of Ronald Reagan)

Peter Tillers, "What Is Wrong with Character Evidence?," 49 Hastings L.J. 781 (1998)

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