P. Tillers in 1A Wigmore on Evidence Section 54.1 (P. Tillers rev. 1983):
The prohibition against "character evidence" is one of the great enigmas of the law of evidence. The practical implications of the rule are complex and convoluted. The theoretical underpinnings of the rule are obscure. The historical origins of the rule are poorly understood.
A variety of explanations have been given for the ban against character evidence. They include: (1) Character evidence has little probative value; (2) character evidence diverts the jury's attention from the merits of the case by inducing it to punish or reward a party for being good or bad in general; (3) in legal proceedings, adverse character evidence saddles a person with disabilities because of prior misconduct; (4) character evidence violates a social commitment to the thesis that each person remains mentally free and autonomous at every point in his life; and (5) the ban against character evidence is a (senseless) product of history.
As an explanation for the existence of the rule against character evidence as a real social phenomenon, all of these reasons for the rule are probably pertinent. However, these reasons are not entirely adequate if one supposes that there is a rational basis for the prohibition against character evidence. Some of the reasons seem palpably false in some situations. (Thus, for example, most observers think that the prior criminal activity of an accused may have significant probative value in a criminal prosecution.) Some of the reasons given seem insufficient to describe the present scope of the rule. (Thus, for example, the danger of prejudice to the parties does not explain the use of the character evidence rule in relation to the conduct of nonparties.) Other explanations seem inconsistent with the settled limitations on the scope of the rule. (Thus, for example, it is difficult to reconcile the admissibility of habit evidence with the premise that the rule generally affirms the principle of autonomy.) In the light of these problems, the effort to explain the justification for the ban on character evidence seems to require a multivariate explanation; different policies or reasons are invoked to explain and justify different aspects of the ban on character evidence, and the search for a comprehensive justificatory theory is abandoned. However, this course of action also presents various perils. Thus, for example, an emphasis on the importance of the reliability of evidence often seems to conflict with the emphasis on affirming human autonomy. Furthermore, if the justifications for the rule are regarded as purposes that must inform the interpretation of the rule, the fixity of the rule itself tends to dissolve and to become replaced by the purposive analysis. The problem of rule fluidity is aggravated because there is no consensus on the amount of weight to be assigned to the various reasons that function as interpretive devices.
The usual black-letter description of the character evidence rule found in the literature and in codes today does not expressly reflect any ofthese various purposes but simply asserts that it is improper for a trier of fact to determine what a person did on a particular occasion by asking and answering the question of whether that person has the sort of disposition that would incline him toward the doing or not-doing of that act. Phrased in this way, the rule seems at first sight to have a wide ambit.
Modern analysis, however, gives the character evidence rule a relatively restricted meaning. It is generally said that the propensity rule does not forbid any use of evidence that reflects badly on the character of a person, and there is no such prohibition even when it happens that the acts of the person shown are not those that are our ultimate concern in the lawsuit in question but serve only as a basis for ascertaining some other matter of fact that does happen to be of more immediate concern. The rule against character evidence, it is thought, prohibits the use of evidence that reflects on the character of a person when and only when that evidence is offered in order to show that the person acted in a certain way on a particular occasion because he had a propensity or inclination to act that way. If the evidence that reflects badly on the character of a person is offered for any other purpose, it does not offend the prohibition against the use of character evidence.
It is difficult, in the abstract, to quibble with this interpretation of the meaning of the rule against character evidence. In practice, however, this interpretation of the scope of the rule offers many opportunities for its evisceration. The first opportunity arises because of the principle of multiple admissibility (see § 13 supra). To the extent that cautionary instructions are not effective in guarding against improper use by a jury of evidence offered for a limited purpose, the ban on the use of character evidence is not complete as a practical matter. The issue then becomes what sort of balance should be used to weigh the legitimate probative importance of the evidence against the danger of its improper use by the jury and how effectively trial judges use their authority to exclude for undue prejudice to regulate the danger of prejudice when persistent advocates do their utmost to find a legitimate basis for the admission of evidence reflecting badly on character and to persuade the court that the dangers of prejudice are outweighed by the legitimate benefits of the evidence.
Whether the principle of multiple admissibility and the manner of its application result in an effective subversion of the ban on character evidence is not a question that can be addressed usefully in these preliminary remarks. That problem requires attention to the specific workings of the rule in particular contexts. Matters stand quite differently, however, with respect to the second major path to the evasion of the ban against character evidence; this is because the second type of method of evisceration involves the question of whether or not, as an abstract matter, the uses of evidence for certain express purposes are analytically equivalent to improper use of character evidence. We briefly discuss this question next.
The character evidence rule, as now understood, prohibits any effort to introduce evidence of the propensity of a person to show a doing or not-doing of an act in accord with that propensity. The ban does not apply, however, when that same evidence is offered for another purpose. In reliance on this theory, it is often said that there is no violation of the propensity rule when evidence is offered to show matters such as intent and accident because such facta probanda do not amount to acts by the person involved. This type of theorizing, however, may emasculate the rule because it is possible that some of these entities or things ("intent," "accident," and the like) in effect amount to acts of a person (in some circumstances) and hence it is possible that in these situations evidence of propensity is indeed being admitted to show an act in conformity with that propensity.[fn1] In short, in some instances we may disguise character evidence as noncharacter evidence by arbitrarily calling what is really an act by some other name. Another analytical maneuver, similar in nature, attacks the character evidence rule at the other end by denying that disposition is disposition but is something else, such as habit. If done, this maneuver is equally potent, though perhaps not equal in its capacity to disguise and deceive.
The extent to which the analytical maneuvers described above do indeed take place — viz., the extent to which the character evidence rule is eviscerated by such deceptive naming — is discussed in detail in the various portions of this volume of the Treatise that deal with various aspects of that rule. Those discussions and reflections have led the reviser to conclude that the sort of analytical evisceration suggested here does indeed occur on a large scale. Why? In our discussions of detailed aspects of the character evidence rule, we survey various efforts to make the necessary distinctions in terms of relevancy and reliability rationales, but on the whole we find such explanations inadequate. In our own view, the windings and twistings of the character evidence rule and its various exceptions are largely without rational explanation because those windings and twistings reflect a halfhearted and unprincipled compromise between an interest in truthseeking and a belief that we should not judge people or their acts by their character.
The compromise the law makes is unprincipled because the degree to which we depart from the prohibition on evidence of character for the sake of truthseeking is not explicable in terms of truthseeking. (Refusal by some courts to even acknowledge the extent of the effective repudiation of the character evidence rule is surely the most unprincipled compromise of all; this compromise may be fairly described as hypocritical.) The official hypocrisy in which we engage as a society may be powerfully assisted, to be sure, by a dawning but still dim awareness that the distinction we ordinarily draw between character, on the one hand, and other qualities of human beings (shortness, left-handedness, mental agility), on the other hand, lacks intellectual coherence when viewed in a broad perspective since it is possible that we can no longer draw a meaningful moral or ethical distinction between the influence of each of these two types of factors on the probability of an act by a person.(Arguably, either type of evidence is equally offensive — or inoffensive — to human dignity because such evidence implies that a person does not in each situation stand as an entirely free actor.) However, if this is the intellectual difficulty that generates the largely senseless meanderings of the character evidence rule, we should openly confront the question and resolve it as best we can. Otherwise, the courts are doomed to continue their often inadvertently hypocritical efforts to make sense out of nonsense.[fn2]
[fn1] The most notable example of the effective evasion of the rule against character evidence is the exception made when evidence that is otherwise character evidence is offered to establish the actor's "intent." Not infrequently, evidence of a criminal defendant's prior wrongful propensities, at times and on occasions unrelated to the crime with which the defendant is charged, is offered to show that the defendant probably had the legally required wrongful intent at the time of the commission of the crime. See §§ 300 through 373 infra. It is often most difficult to understand in what sense it may be said that the use of this type of evidence does not constitute the use of a propensity to show that the defendant probably committed the crime charged. See, e.g., Marshall v. Commonwealth, 482 S.W.2d 765 (Ky.Ct.App. 1972) (court struck down attempt of prosecutor to justify use of defendants' prior criminal record on theory that record showed defendants' intent to commit the burglary charged; court viewed prosecutor's action as an attempt to show that defendants were the types of persons who are inclined to commit burglary).
In Vanlue v. State, 87 Wis. 2d 455, 275 N.W.2d 115 (Wis.Ct.App. 1978), reversed, 96 Wis. 2d 81, 291 N.W.2d 467 (1980), involving the charge of possession of burglarious tools, the Wisconsin Court of Appeals said:
"The State contends that the evidence of two prior burglary convictions was relevant to show intent and therefore admissible under sec. 904.04(2). The State's theory is that since the defendant has previously been convicted of burglary, he had knowledge of what tools were necessary or could be used in a burglary. This knowledge, the State claims, tends to show that the defendant had the intent to possess tools to be used in a burglary. The State further contends that the probative value of this evidence was not outweighed by its prejudicial effect. Therefore, it was not excludable under sec. 904.03, Stats. We disagree with the State's position.
"Section 904.04(2), Stats., provides:
'(2) 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 that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'
"Essentially, the State is arguing that the burglary convictions were relevant because they tended to prove that the defendant was acting in conformity with past behavior. This is precisely the type of evidence which is inadmissible under sec. 904.04(2). The State's claim that the evidence was admitted for the purpose of showing intent, not character, is fiction. The only relevance this evidence had was to show that he was guilty of possession of burglarious tools because he had committed burglary before and was about to do it again. This evidence in no way shows intent but only character as defined in sec. 904.04(2). To rule that this evidence is admissible under sec. 904.04(2) would essentially nullify the language in that section which provides that '[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.' When the Supreme Court adopted sec. 904.04(2), they intended it to have some meaning. If evidence of the nature of the crimes in this case is admissible, sec. 904.04(2) has no meaning.
"Since we hold that the evidence of the nature of prior convictions in this case was inadmissible, we need not determine whether its probative value was outweighed by its prejudicial effect" (275 N.W.2d at 117-118).
The Supreme Court of Wisconsin reversed the judgment of the Wisconsin Court of Appeals and ordered reinstatement of Vanlue's conviction. Vanlue v. State, 96 Wis. 2d 81, 291 N.W.2d 467 (1980). In doing so, it said:
"The evidence in question bears directly on one of the elements of the crime of possession of burglarious tools — intent. Mere possession of a crowbar and a pocket knife, along with a pillow case and a pair of gloves, is not a violation of sec. 943.12, Stats. Before possession of such tools is a crime under the provisions of sec. 943.12, it must be proven that the possession was `with intent to use such device or instrumentality to break into a depository, building or room.' Evidence that the defendant had been convicted of burglaries in the past is relevant to the intent element, when supported by the time and place of his arrest, because it makes it more probable than it would be without the evidence that the defendant possessed the tools with the requisite intent to use them to commit a burglary. Because the defendant had previously been convicted of burglary, he had knowledge of what tools were necessary or could be used in a burglary.
"Because evidence of prior burglary convictions was relevant to intent and was not sought to be introduced as proof of the character of the defendant in order to show that he acted in conformity therewith, it was admissible under sec. 904.04(2), Stats. . . .
"This court has held that other crimes evidence is admissible as proof of intent under the provisions of sec. 904.04(2), Stats. See: Simpson v. State, 83 Wis. 2d 494, 510, 266 N.W.2d 270 (1978); Peasley v. State, 83 Wis. 2d 224, 233, 265 N.W.2d 506 (1978); King v. State, 75 Wis. 2d 26, 43-45, 248 N.W.2d 458 (1977). In Peasley v. State, supra, this court held in a prosecution for delivery of LSD and possession with intent to deliver cocaine, that evidence relating to the defendant's prior drug sales activities was admissible as evidence of his intent to deliver cocaine.
"It has been held in other jurisdictions that in a prosecution for possession of burglarious tools, in order to prove the general burglarious intent of the defendant, evidence is admissible which shows the defendant's prior convictions of burglary and larceny, State v. Caldrone, 202 Kan. 651, 451 P.2d 205 (1969); State v. Caldrone, 205 Kan. 828, 473 P.2d 66 (1970), cert. den. 401 U.S. 916, 91 S. Ct. 896, 27 L. Ed. 2d 817 (1971); defendant's prior convictions of burglary, State v. Young, 425 S.W.2d 177 (Mo. 1968); defendant's prior convictions for automobile theft and grand larceny, State v. Medley, 360 Mo. 1032, 232 S.W.2d 519 (1950), cert. den. 340 U.S. 956, 71 S. Ct. 568, 95 L. Ed. 689 (1951); defendant's prior conviction of bank robbery, State v. Watson, 386 S.W.2d 24 (Mo. 1964); defendant's prior conviction of attempted larceny. State v. Jerrel, 200 Kan. 415, 436 P.2d 973 (1968); defendant's commission of recent burglaries, State v. Olsen, 43 Wash. 2d 726, 263 P.2d 824 (1958); Fennen v. Commonwealth, 240 Ky. 530, 42 S.W.2d 744 (1931); that the defendant is a burglar, State v. Watson, supra; People v. Jefferson, 161 Mich. 621, 126 N.W. 829 (1910); and that the defendant associated with burglars, State v. Lorts, 269 S.W.2d 88 (Mo. 1954). See also: State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938 (1935), and 1 Op. Atty. Gen. 174 (1912), where the attorney general stated that in the trial of a defendant for possession of burglarious tools, it could be shown that the defendant committed and was convicted of burglary once before, to show his knowledge of the nature of the tools and his intent to use them.
"In Hansen v. State, 64 Wis. 2d 541, 546, 219 N.W.2d 246, 249 (1974), this court considered the elements that must be proven in order to convict a person of a violation of sec. 943.12, Stats, In considering the element of intent this court stated:
"`. . . It has been recognized by this court that: "`"Intent is a state of mind existing at the time a person commits an offense. If intent required definite and substantive proof, it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct, and inferences fairly deducible from all the circumstances"'"'" (291 N.W.2d at 469-470).
Justice Abrahamson, dissenting from the judgment of the Wisconsin Supreme Court in Vanlue, said:
"I am persuaded, as was the court of appeals, that the use of the evidence of prior convictions in the case at bar tended to prove character, not intent. . . .
"In the other cases from four states cited by the majority on page 470 of its opinion as allowing evidence of prior conviction, the convictions were based on more evidence than the possession of tools and a prior conviction. In most of the cases, either the defendant was connected with a robbery or burglary which occurred shortly before his arrest on the charge of possession of burglarious tools or the defendant had in his possession recently stolen goods.
"In the case at bar, there is no such `other evidence.' There was no reported burglary in the vicinity in which the defendants were arrested. The defendants were not found under circumstances that made it appear that they were about to break into a building. The testimony of the police was that they were called to the scene not to investigate a possible burglary or other similar suspicious circumstances but to investigate the source of loud noises. A police officer testified that it was highly unusual for a burglar to make loud noises before committing the crime. When the defendant and his companion were stopped by the police, they did not attempt to resist arrest, or flee from the scene; they answered the officer's questions, although apparently not always truthfully. Although a fact-finder might have reached a guilty verdict on the basis of these circumstances (compare Hansen v. State, 64 Wis. 2d 541, 219 N.W.2d 246 (1974)) the admission of the evidence of the prior convictions tainted the trial and was prejudicial error. Hart v. State, 75 Wis. 2d 371, 395, 249 N.W.2d 810 (1976)" (291 N.W.2d at 474).
The various exceptions to the character rule used by the courts cause the rule to operate as a barrier to admissibility to approximately the same extent that wire mesh operates as a barrier to the flow of water. See, e.g., Smith v. State, 587 S.W.2d 50, 53 (Ark.Ct.App. 1979) (conviction for violation of Arkansas Securities Act):
"Appellant next claims the trial court erred in allowing testimony covering prior dealings involving stock transactions defendant had with other individuals. In admitting testimony of this kind, the court has two criteria as a guide. The previous conduct must not be too remote from the offense charged and it must be similar in nature to the offense charged. When such evidence is admitted it must be accompanied by a limiting instruction which the court in this case gave. Appellant does not question the instruction given and does not raise the question of the similarity of acts, but does claim that the other similar acts were too remote. He contends that in Carter v. United States, 8 Cir., 549 F.2d 77 (1977) the court held the only evidence of other crimes permissible under Rule 404(b) is where they are in immediate context or res gestae of the offense on trial. While the court in Carter did recognize the res gestae rule, it did so by expanding Rule 404, not limiting it. See 41 ALR Fed. 515. The case of Gary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976) made it clear the matter of remoteness is addressed to the sound judicial discretion of a trial judge, which will be interfered with by a reviewing court only when it is clear the questioned evidence has no connection with the case. Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). The court in People v. Dunn, 40 Cal. App. 2d 6, 104 P.2d 119 cert. den. 311 U.S. 701, 61 S. Ct. 139, 85 L. Ed. 454 (1940), found that five years between acts was not too remote.
"Evidence of similar offenses has been admitted in violations of state security laws in other jurisdictions for the purpose of showing a common scheme or plan. People v. Dutton, 41 Cal. App. 2d 866, 107 P.2d 937 (1940).
"We hold the evidence of other prior similar transactions involving the offer and sale of securities by appellant was properly admitted to show habit and practice of Smith and Memphis Mobile Telephone, operated by Smith, in the normal course of business. Tolbert v. State, 244 Ark. 1067, 428 S.W.2d 264 (1968); Wilson v. State, 184 Ark. 119, 41 S.W.2d 764 (1931); and McGhee v. State, 214 Ark. 221, 215 S.W.2d 135 (1948). It was also properly admitted to show a common scheme, plan and course of dealing by appellant. Kerby v. State, 233 Ark. 8, 342 S.W.2d 412 (1961)."
Additional examples of questionable decisions of this sort may be found in § 57, note 3, infra as well as in §§ 300 through 373 infra.
This is not the place for an extended excursus on the intent exception to the character evidence rule (such a discussion may be found in §§ 300 through 373), but it may be noted that the judicial decisions construing the intent exception are plagued by a misunderstanding that seems to afflict much of the interpretation of other exceptions to the character evidence rule. Many courts seem to take the view that "intent" and "conduct" are mutually exclusive categories. They reason: The evidence is offered to show intent; therefore, it is not offered to show conduct; and therefore the use of the evidence does not violate the character evidence rule (because the character evidence rule only extends to the use of character to show conduct on a particular occasion in conformity with the character shown). In fact, however, it must be questioned whether intent and conduct are always mutually exclusive categories, and it must be said that some forms of intent amount to conduct. (In many instances, for example, the mens rea necessary for conviction of a particular crime does not merely refer to a state of awareness or state of mind at the time of the crime but refers also to a particular type of decision by the actor charged with crime. Thus, for example, in most jurisdictions a person may be convicted of first degree murder only if he made a decision to kill at some time before he actually did the killing, and criminal liability for first degree murder, and probably also for intent-to-kill murder of the second degree, probably presupposes that the actor's decision to kill precipitated a chain of events that resulted in the death charged.)
It is difficult to understand what the character evidence rule may possibly mean if it does not apply to "mental acts," for the character evidence rule, in its paradigmatic form, reaches facta probanda that are voluntary acts rather than involuntary ones, viz., it is designed to prohibit proof that a person voluntarily and deliberately decided to do an act charged because he had a disposition to do that act. The character evidence rule may reach other types of acts as well, although this remains a matter of debate. But it has always been assumed that the character evidence rule applies most clearly when the effort is made to use propensity evidence to prove the doing of a deliberate act on a specific occasion, for the precise point of the rule may well be that we should assume that acts on specific occasions are based on a specific and unique decision to act in a particular way in particular circumstances and that we should not assume that such acts are instead the result of proclivities, tendencies, dispositions, or character traits. See, e.g., State v. Rives, 193 La. 186, 190 So. 374, 378 (1939) (theft of cows; evidence concerning prior theft of cows admitted at trial; held, reversible error): "[O]rdinarily, as an independent proposition in prosecutions of such offenses, the State must stand or fall upon facts and circumstances surrounding the particular case under investigation.
"As to the suggestion that the testimony was admissible in order to show that defendant `had a mind bent on doing mischief,' no further comment is necessary than to say that it is an elementary rule of criminal procedure that the State is not permitted to introduce in evidence the character of an accused unless and until the accused puts in evidence his character and thereby opens the door. At the time this testimony was introduced, the accused had not taken the stand and had offered no testimony at all. At that stage of the trial the State had no right to show by any kind of testimony that the accused `had a mind bent on doing mischief.'
"As stated by Wharton in his work on Criminal Evidence: `A man cannot be convicted of crime because he is a bad man generally or has committed other crimes for which he has not been punished.'"
The type of problem presented by the intent exception to the character evidence rule is not unique. The exceptions made for matters such as motive often have equally severe, if less palpable, corrosive effects. How this evisceration of the rule against propensity evidence happens is examined in the discussion of the various exceptions to the propensity rule and is not set forth further here.
[fn2] A valiant effort to make general sense out of general nonsense is found in an unlikely place — a Nutshell. See Rothstein, Evidence: State and Federal Rules 351-372 (1981). In the course of his explanation, Professor Rothstein places considerable emphasis on the sense in which the ban on character evidence is designed (at least in some cases) largely to prevent the admission of character evidence that casts imputations of bad character on the individual in question. This emphasis, while not sufficient to explain all of the workings of the rule, has considerable merit as an explanatory device, notwithstanding the fact that the character evidence rule as now generally codified and described does not expressly restrict the scope of the ban on character evidence to cases in which the disposition shown has an adverse social or moral connotation. See rules and statutes gathered in § 57, note 3, infra. In the end, however, Professor Rothstein rather openly acknowledges that many so-called exceptions to the character evidence rule cannot be regarded as anything other than a limited repudiation of the rule. He seems to take the view that such repudiation generally occurs when the probative value of the character evidence happens to be the greatest. While we are inclined to agree that the interest in truth places pressure on adherence to the character evidence rule, we do not believe that the manner of its repudiation is clearly explained by reference to degrees of probative value; we take the view that the character evidence rule, quite haphazardly, leads to the exclusion of much evidence whose probative value equals or exceeds the probative value of various types of character evidence that is admitted by means of a number of conceptual stratagems.