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Simon-Kerr, Julia
Vanderbilt law review, 11/2023, Volume: 76, Issue: 6Journal Article
INTRODUCTION Perhaps no rules of evidence are as contested as the rules governing character evidence.1 To ward off the danger of a fact finders mistaking evidence of character for evidence of action, the rules exclude much contextual information about the people at the center of the proceeding.2 This prohibition on character propensity evidence is a bedrock principle of American law.3 Yet despite its centrality, it is uncertain of both content and application.· · · 4 Contributing to this uncertainty is a definitional lacuna. In offering this framing of the problem and proposed solution, I am influenced by feminist and inter sectional feminist thinkers as well as critical race theorists who have exposed how the legal system assumes white men as the baseline.10 The past five decades of scholarly critique of the character evidence rules bear out the existence of a baseline figure. Most prominently, Rule 404 prohibits propensity evidence.20 There are some exceptions when defendants or victims put their characters at issue in a criminal case.21 And there is a glaring reversal of the prohibition for defendants accused of sexual assault.22 The rules also try to make clear that evidence that would otherwise look like character evidence is admissible for a nonpropensity purpose, such as showing that the defendant had the knowledge to commit a particular crime.23 But the character evidence rules do not stop there. Rule 404 also incorporates by reference Rule 609, which permits the impeachment of witnesses with evidence of prior convictions subject to balancing tests that have been increasingly interpreted to favor admissibility.24 Under Rule 608, also incorporated by reference in Rule 404, witnesses can be called to impeach another witness's character for truthfulness or to testify to a witness's character for truthfulness once that character has been attacked.25 No Federal Rule makes explicit reference to demeanor.
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