Mean But Stupid


Texas Rule of Evidence 404(b):

Other crimes, wrongs, or acts. 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….

Rule 405:

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.…

In other words,

Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.

Michelson v. United States, 335 U.S. 469, 475 (1948).

Why is the inquiry into character rejected?

The inquiry is not rejected 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. 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.

Michelson v. United States, 335 U.S. 469, 475-76 (1948).

Texas Senate Bill 152 (Huffman):

Sec. 2.  Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other similar offenses committed by the defendant may be admitted in the trial of the alleged offense for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant, as follows:
(1)  in the trial of an offense under Section 22.011 (Sexual Assault) or 22.021 (Aggravated Sexual Assault), Penal Code, or an attempt or conspiracy to commit an offense under either of those sections, evidence of:
(A)  the commission of another offense under either of those sections; or
(B)  an attempt or conspiracy to commit an offense under either of those sections; and
(2)  in the trial of an offense under Section 20A.02 that is punishable as a
felony of the first degree under Section 20A.02(b)(1) (Sex Trafficking of a Child), Section 21.02 (Continuous Sexual Abuse of Young Child or Children), 21.11 (Indecency With a Child), 22.011(a)(2) (Sexual Assault of a Child), 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a Child), 33.021 (Online Solicitation of a Minor), 43.25 (Sexual Performance by a Child), or 43.26 (Possession or Promotion of Child Pornography), Penal Code, or an attempt or conspiracy to commit an offense under any of those sections, evidence of:
(A)  the commission of another offense under any of those sections; or
(B)  an attempt or conspiracy to commit an offense under any of those sections.

“Allowing testimony of similar sex offenses ‘brings Texas closer in line with federal rules of evidence,’ [Joan Huffman, the bill’s sponsor] added.”

Here are the Federal rules to which she refers, 413(a) and 414(a):

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

and

In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

When Congress took it upon itself to amend the Federal Rules of Evidence in 1994 to include those two provisions, the Judicial Conference of the United States opposed the amendments:

Evidence Rule 404(b) now allows the admission of evidence against a criminal defendant of the commission of prior crimes, wrongs, or acts for specified purposes, including to show intent, plan, motive, preparation, identity, knowledge, or absence of mistake or accident.

Furthermore, the new rules, which are not supported by empirical evidence, could diminish significantly the protections that have safeguarded persons accused in criminal cases and parties in civil cases against undue prejudice.  These protections form a fundamental part of American jurisprudence and have evolved under long-standing rules and case law. A significant concern identified by the committee was the danger of convicting a criminal defendant for past, as opposed to charged, behavior or for being a bad person.

In addition, the advisory committee concluded that, because prior bad acts would be admissible even though not the subject of a conviction, mini-trials within trials concerning those acts would result when a defendant seeks to rebut such evidence.
. . . . .
The Advisory Committees on Criminal and Civil Rules unanimously, except for representatives of the Department of Justice, also opposed the new rules. Those committees also concluded that the new rules would permit the introduction of unreliable but highly prejudicial evidence and would complicate trials by causing mini-trials of other alleged wrongs. After the advisory committees reported, the Standing Committee unanimously, again except for the representative of the Department of Justice, agreed with the view of the advisory committees.

One might expect that Joan Huffman, with her experience as a district-court judge trying felony cases, would recognize that her proposal would “permit the introduction of unreliable but highly prejudicial evidence.” And perhaps she does: as a judge, she was notoriously biased toward the prosecution. But perhaps she does not, for, as one courthouse wag notes, “she may be mean, but at least she’s stupid.”


4 responses to “Mean But Stupid”

  1. Mark, since when has a trial been about finding the truth and not about convincing the public that they are “protected” from those scary people (and thus, you should re-elect me, the people’s protector)?

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