IInnddiiaannaa LLaaww JJoouurrnnaall Volume 73 Issue 4 Article 3 Fall 1998 IInn DDeeffeennssee ooff tthhee CChhaarraacctteerr EEvviiddeennccee PPrroohhiibbiittiioonn:: FFoouunnddaattiioonnss ooff tthhee RRuullee AAggaaiinnsstt TTrriiaall bbyy CChhaarraacctteerr David P. Leonard Loyola Law School, Los Angeles Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Courts Commons, and the Evidence Commons RReeccoommmmeennddeedd CCiittaattiioonn Leonard, David P. (1998) "In Defense of the Character Evidence Prohibition: Foundations of the Rule Against Trial by Character," Indiana Law Journal: Vol. 73 : Iss. 4 , Article 3. Available at: https://www.repository.law.indiana.edu/ilj/vol73/iss4/3 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. In Defense of the Character Evidence Prohibition: Foundations of the Rule Against Trial by Character DAVID P. LEONARD* I. INTRODUCTION ............................................... 1162 II. THE PROHIBITION OF TRIAL BY CHARACTER ...................... 1164 A. GeneralD escription of the Ban on CharacterE vidence .......... 1165 B. Common Law History of the CharacterR ule .................... 1167 C. Permissible Uses of Other Misconduct Evidence ................ 1172 III. REASONS FOR THE GENERAL CHARACTER PROHIBITION ............ 1180 A. Legal Rationales ........................................... 1181 B. The AspirationalR ationale .................................. 1186 C. Historical,R eligious, and PhilosophicalF oundations ........... 1193 1. Historical Foundation .................................... 1193 2. Protestant Theology and the Doctrine of Predestination ....... 1196 3. M oral Philosophy ....................................... 1199 IV. LACK OF CHARACTER EMPHASIS IN SUBSTANTIVE LEGAL STANDARDS ................................................ 1201 A. Nineteenth Century Evolution of Tort Doctrine: Responsibilityf or Accidental Harm ........................... 1202 B. The Tort Law Concept of "Intent". ........................... 1206 C. Evolution of the Mens Rea Element in CriminalL aw: Retreatf rom Morally Tinged Labels .......................... 1208 D. The Modern Concept of Intent in the CriminalL aw ............. 1209 V. THE RECENT RETREAT FROM THE CHARACTER BAN ................ 1211 VI. CONCLUSION ............................................... 1215 * Professor of Law and William M. Rains Fellow, Loyola Law School, Los Angeles. I wish to thank the participants in Loyola's legal history reading group for their ideas and encouragement. I am grateful to the participants in the October 1996 A.A.L.S. Workshop on Evidence, especially Steve Goldberg, David McCord,'Miguel Mdndez, Aviva Orenstein, Roger Park, and Andrew Taslitz for their thoughts. I also appreciate the helpful advice of Catherine Fisk, Victor Gold, Charlotte Goldberg, Cheryl Hyman, and Sam Pillsbury. 1162 INDIANA LAW JOURNAL [Vol. 73:1161 I. INTRODUCTION One of the oldest principles of Anglo-American law is that a person "should not be judged strenuously by reference to the awesome spectre of his past life."' This strongly entrenched tradition has led to the familiar rule of evidence law generally forbidding the use of character-including, of course, evidence of other misdeeds2-when it is offered to prove that a person acted in conformity with that character on a particular occasion.' Today, that rule is under attack. In 1994, Congress passed crime legislation4 adding several new provisions to the Federal Rules of Evidence. Three of these rules allow character evidence, in the form of similar criminal conduct, to be used in prosecutions and civil actions alleging sexual misconduct or child molestation.' The states have begun to take similar action,6 and though most legal scholars have criticized these rules,7 some have expressed sympathy with at least 1. M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 IOWA L. REV. 325, 325 (1956); see also Major Stephen R. Henley, Caveat Criminale: The Impact of the New Military Rules of Evidence in Sexual Offense and Child Molestation Cases, ARMY LAW., March 1996, at 82, 86 ("American jurisprudence is grounded in the theory that courts try cases rather than persons."); Ernest E. Williams, Evidence to Show Intent, 23 L.Q. REV. 28 (1907). The English law of evidence, in sharp contradistinction, for example, to the French law, will not permit a man's chances of proving his innocence of the offence with which he is charged to be prejudiced by a revelation to the jury of other misdeeds of a like character committed by him, or of any evidence the purport of which is to proclaim him a "bad man," and as prima facie likely to be guilty of the offence with which he is charged. The accused is on his trial for the specific crime alleged in the indictment: he is not in the dock to answer for his life-history. Id. at 30. In United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980), the court wrote: "It is fundamental to American jurisprudence that 'a defendant must be tried for what he did, not for who he is."' Id at 523 (quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977)). In Myers, the court also wrote that the rule is "[a] concomitant of the presumption of innocence." Myers, 550 F.2d at 1044. 2. Generally, character evidence is said to fall into three categories: reputation, opinion, and specific instances of conduct. See FED. R. EVID. 405. The present inquiry primarily concerns the use of specific instances of a person's conduct (including past states of mind) as circumstantial proof of a particular character trait. 3. For a general canvassing of the character evidence rules, see Richard L. Wydick, CharacterE vidence: A Guided Tour of the Grotesque Structure, 21 U.C. DAVIS L. REV. 123 (1987). See also sources cited infra note 12. 4. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified in scattered sections of 16, 18, 21, 28, and 42 U.S.C.). 5. See FED. R.E vID. 413-15. For a discussion of societal perceptions about crime see infra notes 228-29 and accompanying text. 6. See infra note 229 and accompanying text. 7. The rules have sparked considerable controversy. For commentary criticizing the rules see James Joseph Duane, The New FederalR ules of Evidence on PriorA cts ofAccused Sex Offenders: A PoorlyD rafted Version of a Very Bad Idea, 157 F.R.D. 95 (1994), Henley, supra note I (criticizing the military's version of Rules 413 to 415), Edward J. Imwinkelried, Some Comments About Mr. David Karp'sR emarks on Propensity Evidence, 70 CHI.-KENT L. REV. 1998] CHARACTER EVIDENCE PROHIBITION certain reforms of this type.' In a social climate of ever-growing fear of crime, it would not be surprising to see serious efforts to do away with the character prohibition altogether. The recent amendments to the Federal Rules of Evidence would appear to constitute the first step in that direction.9 The rules have quite 37 (1994), Edward J. Imwinkelried, Undertaking the Task of Reforming the American CharacterE vidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285 (1995), David P. Leonard, The FederalR ules of Evidence and the PoliticalP rocess, 22 FORDHAM URB. L.J. 305 (1995), James S. Liebman, Proposed Evidence Rules 413 to 415-Some Problems andR ecommendations, 20 U. DAYTON L. REV. 753 (1995), Jeffrey G. Pickett, The Presumption of Innocence Imperiled: The New Federal Rules ofEvidence 413-415 and the Use of OtherS exual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995), Mark A. Sheft, FederalR ule of Evidence 413: A DangerousN ew Frontier,3 3 AM. CRIM. L. REV.5 7 (1995), and Anne Elsberry Kyl, Note, The Propriety of Propensity: The Effects and Operationo f New FederalR ules of Evidence 413 and 414, 37 ARIZ. L. REV. 659 (1995). In 1995, the American Bar Association adopted a resolution opposing the substance of the new rules. See Myma S. Raeder, American Bar Association CriminalJ usticeS ection Report to the House ofDelegates, 22 FORDHAMURB. L.J. 343 (1995). The Judicial Conference of the United States, given an opportunity to comment on the proposed rules before they became effective, suggested revisions to "clarify drafting ambiguities and eliminate possible constitutional infirmities." JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER, EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES 1 (1995), reprintedi n 159 F.R.D. 51, 52 (1995). 8. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529 (1994) (proposing a limited exception to the character bar in sexual-assault cases involving acquaintances); Karen M. Fingar, And Justice for All: The Admissibility of UnchargedS exual Misconduct Evidence Under the Recent Amendment to the Federal Rules of Evidence, 5 S. CAL. REV. L. & WOMEN'S STUD. 501 (1996); Norman M. Garland, Some Thoughts on the Sexual Misconduct Amendments to the Federal Rules of Evidence, 22 FORDHAM URB. L.J. 355 (1995) (supporting the policy of the new rules though sharply criticizing the drafting); David J. Karp, Evidence ofP ropensity and Probabilityi n Sex Offense Cases andO ther Cases, 70 CHI.-KENT L. REV. 15, 35 (1994) (suggesting that evidence of other sex crimes be permitted in sex offense cases while "providing appropriate safeguards of fairness for the defendant"); Roger C. Park, The Crime Bill of 1994 and the Law of CharacterE vidence: Congress Was Right About Consent Defense Cases, 22 FORDHAM URB. L.J. 271 (1995) (supporting the new rules in cases in which the accused raises a consent defense); Andrew E. Taslitz, PatriarchaSl tories L CulturalR ape Narrativesi n the Courtroom, 5 S.C AL. REV. L. & WOMEN'S STUD. 387, 494-96 (1996) (favoring limited change while criticizing the new rules); Benjamin Z. Rice, Note, A Voice from People v. Simpson: Reconsideringt he PropensityR ule in Spousal Homicide Cases, 29 Loy. L.A. L. REv. 939, 950- 51 (1996) (proposing that in spousal homicide cases, where defendant had physically abused victim in the 10 years prior to the alleged murder, evidence of specific acts of violence or physical abuse be allowed to show defendant's tendency to abuse spouse); Lisa M. Segal, Note, The Admissibility of UnchargedM isconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lusyful Disposition Exception, 29 SUFFOLK U. L. REV. 515 (1995); Debra Sherman Tedeschi, Comment, FederalR ule of Evidence 413: Redistributing "The Credibility Quotient", 57 U. PIrr. L. REv. 107 (1995). 9. See Richard C. Reuben, Some Judges Oppose Evidence Amendment, A.B.A. J., Jan. 1995, at 20, 20 ("'There is no question that it is the beginning of an experiment ...to see whether, as a general proposition, we should just abolish the bar altogether."') (omission in original) (quoting Professor Edward Imwinkelried). 1164 INDIANA LAW JOURNAL [Vol. 73:1161 accurately been characterized as "radically chang[ing] the historic bar on character evidence being offered to prove present conduct."' The age of a rule does not alone justify its perpetuation. Bad rules should not endure after the evils they create or preserve are discovered. But stability in a system of law is a fundamental value. Respect for the role of stare decisis demands that we evaluate carefully the reasons for a rule before we break with the past. When a rule's longevity can be measured in terms of centuries rather than only Vears or decades, it is particularly appropriate to undertake reform cautiously. The character rule presents such an instance. The purpose of this Article is to examine the legal, historical, and philosophical origins of the rule prohibiting trial by character. Part II canvasses the basic content and common law development of the character bar. It also generally describes the relationship of the character bar to the rule permitting evidence of other crimes, wrongs, or acts when offered upon reasoning that does not involve an inference of character. Part III examines the justifications for the rule from a number of perspectives. First, the most common rationales offered by courts and legal academics are described. Next, I consider what I will call the "aspirational" rationale for the rule, drawing in part on the Jewish doctrine of loshon hora-a prohibition of negative talk about others. Next, I review the historical setting in which the rule arose, and set forth some of the other religious, philosophical, and substantive legal trends the rule reflects. I will pay particular, though not exclusive, attention to the period early in the nineteenth century during which the rule became firmly established. This was an era of massive social change in Great Britain and the United States, and while ascribing a cause-and-effect relation to social and philosophical movements and the creation of legal rules is a risky endeavor, it can at least be said that the establishment of the character rule corresponds well with these changes in society and in intellectual thought. Finally, I attempt to link the character rule with the evolution of certain aspects of tort and criminal law doctrine that elevate conduct over moral character. Part IV reviews the current legislative attack on the rule. While this assault can be explained in light of the social climate of the late twentieth century, I will argue that the kinds of changes that are occurring cannot be justified on the basis of any corresponding evolution in the moral theory behind the proposition that people should be tried for their specifically charged acts, not for the flaws of their character. II. THE PROHIBITION OF TRIAL BY CHARACTER For at least two centuries, both English and American courts have generally prohibited the use of character evidence as circumstantial proof that a person 10. Taslitz, supra note 8, at 495. 1998] CHARACTER EVIDENCE PROHIBITION 1165 engaged in particular conduct at issue in the case." In the Parts that follow, I will describe the basic rule and discuss its long-standing acceptance. A. GeneralD escription of the Ban on CharacterE vidence The character rule is a very familiar part of American evidence law and has been explained at length elsewhere. 2 Generally speaking, the prosecution in a criminal case and all parties in civil cases are prohibited from offering evidence of a person's character 3 as circumstantial evidence of that person's conduct. This rule is actually rather narrow. Only if the evidence is offered to prove that a person possesses a relevant character trait that would make it more likely that 11. There are, of course, many other potential uses of character evidence; they are not under consideration in this Article. For example, the law is permissive with regard to character evidence when character is itself an essential element of a claim or defense. See FED. R. EVID. 405(b). Character evidence is also admissible under some situations when offered to prove the credibility or lack of credibility of a witness. See id. Rule 608 (concerning evidence of reputation, opinion, and conduct when challenging a witness's truthful character); id. Rule 609 (concerning evidence of criminal convictions for impeaching a witness). 12. For descriptions and critique of the character rule, see, for example, Susan Marlene Davies, Evidence of Charactert o Prove Conduct: A Reassessment of Relevancy, 27 CRIM.L . BULL. 504 (1991), William G. Hale, Some Comments on CharacterE vidence and Related Topics, 22 S.C AL. L. REv. 341 (1949), Mason Ladd, Techniques and Theory of Character Testimony, 24 IOWA L. REV. 498 (1939), David P. Leonard, The Use of Charactert o Prove Conduct: Rationality andC atharsisi n the Law ofEvidence, 58 U. COLO. L. REV. 1 (1986-87), Miguel Angel Mendez, California'sN ew Law on CharacterE vidence: Evidence Code Section 352 andt he Impact of Recent PsychologicalS tudies, 31 UCLA L. REV. 1003 (1984), John R. Schmertz, Jr., Relevancy andI ts Counterweights:A BriefE xcursion Through Article IV of the ProposedF ederalR ules ofEvidence, 33 FED. B.J. 1 (1974), Joel Schrag & Suzanne Icotchmer, Crime and Prejudice: The Use of CharacterE vidence in CriminalT rials, 10 J.L. ECON. & ORG. 319 (1994), Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological CharacterE vidence, 52 MD. L. REV. 1 (1993), Morris K. Udall, Character Proofi n the Law ofEvidence-A Summary, 18 U. CIN.L . REV. 283 (1949), H. Richard Uviller, Evidence ofC haractert o Prove Conduct: Illusion, Illogic, andI njustice in the Courtroom, 130 U. PA. L. REV. 845 (1982), Glen Weissenberger, CharacterE vidence Under the FederalR ules: A Puzzle with Missing Pieces, 48 U. CIN.L . REV. 1 (1979), Wydick, supra note 3, and Daniel J. Capra, CharacterE vidence and PriorB adA cts, N.Y. L.J., May 10, 1996, at 3. 13. A satisfactory definition of "character" is elusive. Wigmore defined character "as the actual moral or psychical disposition." IA JOHN HENRY WIGMORE, EVIDENCE § 52, at 1148 (Peter Tillers rev., 1983). Elsewhere, Wigmore defined character as "any and every quality or tendency of a person's mind, existing originally or developed from his native substance, and more or less permanent in their existence." JOHN HENRY WIGMORE, THE SCIENCE OF JUDICIAL PROOF § 52, at 103 (3d ed. 1937). Charles Tilford McCormick's treatise defines character as "a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness." I CHARLES TILFORD MCCORMICK ON EVIDENCE § 195, at 825 (John William Strong ed., 4th ed. 1992) [hereinafter MCCORMICK ON EVIDENCE]. Another author states that the law treats character as "a collection of 'traits,' each a self-contained packet of potential conduct consistent with previously observed reactions to events, people, or things." Uviller, supran ote 12, at 849. Almost certainly, "character" carries moral connotations. 1166 INDIANA LA W JOURNAL [Vol. 73:1161 she would commit the act in question is the evidence excluded. 4 If the evidence takes the form of other misconduct of the person, it will often be admissible based on different, theoretically noncharacter, reasoning.5 Moreover, exceptions to the general rule permit the use of character evidence under limited circumstances in criminal cases.'6 As Wigmore wrote, in criminal cases "[t]he ru!e, then, firmly and universally established in policy and tradition, is that the prosecution may not initially attack the defendant's character."'7 In civil cases, the prohibition on the use of character to prove a person's conduct (other than whether the person has told the truth as a witness) is virtually complete. 8 As Wigmore stated: "It is to-day generally said that.., the charactero f a party in a civil cause is inadmissible; Le. that it cannot be used, as used for or against a 14. See FED. R. EVID. 404(a) ("Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion."); id. Rule 404(b) ("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."). 15. See id, Rule 404(b) ("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 .... "). Unfortunately, the law regarding when evidence satisfies this alternative analysis is quite confused. See Richard B. Kuhns, The Propensity to Misunderstandt he Charactero f Specific Acts Evidence, 66 IowA L. REV. 777, 777 (1981). 16. See FED. R. EVID. 404(a)(1) (permitting the use of character evidence by a criminal defendant, and by the government to rebut defendant's evidence); id. Rule 404(a)(2) (permitting the use of evidence of the victim's character under certain circumstances). 17. 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 57, at 456 (3d ed. 1940). Thayer also recognized this rule, writing that it "forbids the use of a person's general reputation or actual character, as a basis of inference to his own conduct." JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 525 (Boston, Little, Brown & Co. 1898); see also 1 MCCORMICK ON EVIDENCE, supra note 13, § 189, at 793 ("[E]vidence of character in any form ... generally will not be received to prove that a person engaged in cetain conduct or did so with a particular intent on a specific occasion, so-called circumstantial use of character.") (footnote omitted); H.C. UNDERHILL, A TREATISE ON THE LAW OF CRIMINAL EVIDENCE § 167, at 291 (John Lewis Niblack ed., 4th ed. 1935) ("Except so far as the character of the accused for veracity may be attacked when he is a witness, the state can not show his bad character in thev first instance, i.e., before he offers to prove his good character."). 18. The rule provides exceptions only for evidence of the character of the "accused" and of the "victim of a crime," terms that are generally taken to limit the exceptions to criminal cases. See, e.g., Hynes v. Coughlin, 79 F.3d 285, 291-93 (2d Cir. 1996) (refusing to admit evidence of plaintiffs prison disciplinary record to prove his assaultive character in a § 1983 action against corrections officers for unreasonable use of force); Charles C. Marvel, Annotation, Admissibility of Evidence of Charactero r Reputation of Party in Civil Action for Assault on Issues Other than Impeachment, 91 A.L.R.3d 718, 723 (1979) (stating "[t]he widely recognized principle that evidence of the character or reputation of the party is ordinarily... inadmissible in a civil action"). A few cases have applied the exceptions to a limited number of civil actions. See Perrin v. Anderson, 784 F.2d 1040 (1986) (holding that evidence of character may be admitted in a civil action for violation of a person's civil rights where the circumstances make the case analogous to a criminal murder prosecution, but holding the evidence at issue in the case inadmissible, however, because it took the form of specific instances of conduct instead of reputation or opinion). 1998] CHARACTER EVIDENCE PROHIBITION 1167 defendant in a criminal case, to indicate the likelihood that the act in issue was or was not done."'19 Certain key empirical assumptions about character underlie the structure of the character rule. The most important of these is that people possess relatively stable character traits that provide some guide to their actions. Thus, it is assumed that if the trier of fact is presented with testimony concerning a person's particular character trait, the jury can make an assessment of the likelihood that the person engaged in the conduct at issue. Over the last several decades, the validity of the assumption about stable character traits from which accurate predictions about conduct can be made has been questioned in both the psychological and the legal literature.20 Nevertheless, the common law character rule-based on this assumption-has been adopted virtually without change throughout the United States.2 B. Common Law History oft he CharacterR ule When did the character ban become so well established? There is no evidence of the existence of such a rule in the earliest stages of the common law's development. Wigmore asserted that character evidence "was resorted to without limitation" in early English practice 2 He believed that the use of bad character evidence "fit[s] ... a more primitive notion of human nature," and he found indications of its use "without question down to the latter part of the 1700s."' At another place in his treatise, however, Wigmore recognized that evidence of other crimes and misconduct had been excluded by the courts considerably earlier.24 Thayer also believed the character ban was "modern," stating that "[i]n 19. 1 WIGMORE, supra note 17, § 64, at 472-73 (emphasis in original). 20. For discussion of the psychological literature, see Davies, supra note 12, Leonard, supra note 12, Mendez, supra note 12, and Taslitz, supra note 12. For a recent article exploring the current state of psychological theory, see Miguel A. Mdndez, The Law of Evidence and the Searchf or a Stable Personality,4 5 EMORY L.J. 221 (1996). 21. For surveys of state adoption of the Federal Rule of Evidence 404(a), which governs the use of character for this purpose, see I GREGORY P. JOSEPH & STEPHEN A. SALTZBURG, EVIDENCE INA MERICA ch. 14 (1987 & Supp. 1994), and 6 JAcK B. WEiNsTEiN &M ARGARET A. BERGER, WEINsTE3N's FEDERAL EVIDENCE T-30 to T-36 (Joseph M. McLaughlin ed., 2d ed. 1997). 22. 1 WIGMORE, supra note 17, § 194, at 646; see id § 194, at 646 n. I (citing a number of English cases, dating to the seventeenth century). 23.3 id § 923, at 450. 24. Some of the oldest cases Wigmore cited were Hampden's Trial, 9 How. St. Tr. 1053 (K.B. 1684), and Harrison'sT rial, 12 How. St. Tr. 833 (Old Bailey, London 1692). See 1 WIGMORE, supra note 17, § 194, at 646 n.1. In the former, Judge Withins stated: You know the case lately adjudged in this Court; a person was indicted for forgery, we would not let them give evidence of any other forgeries but that for which he was indicted, because we would not suffer any raking into men's course of life to pick up evidence that they cannot be prepared to answer to. Hampden's Trial, 9 How. St. Tr. at 1103. In Harrison'sT rial, defendant was charged with murder. The prosecution called a witness to relate defendant's felonious conduct a year earlier. Lord Chief Justice Holt stated: "Hold, what are you doing now? Are you going to arraign his whole life? Away, away! That ought not to be; that is nothing to the matter." Harrison'sT rial, 1168 INDIA NA LA WJOURNAL [Vol. 73:1161 earlier times such evidence was freely used in our courts."'25 Furthermore, Julius Stone, who wrote influential studies of English and American cases in the early part of this century,26 stated that "[a]n examination of the early text-writers fails to reveal any recognized rule excluding evidence of similar facts. 27 Although the rule barring character evidence became firmly established by the first decade of the nineteenth century,28 there are indications that the rule-or at least the principle that other misconduct of a person should not be used to prove the conduct at issue-was recognized considerably earlier. As early as 1692, in Duke of Norfolk v. Germaine,29 we see a court refusing to admit evidence of other misconduct "without limitation." Germaine was an action for adultery." Plaintiff called many witnesses, but all testimony concerning the most clearly adulterous behavior concerned events that took place more than six years earlier, and for which the statute of limitations had expired.' The testimony concerning events taking place during the relevant period was considerably more circumstantial. 2 Though the behavior of defendant and the Duchess during the latter period was not clearly innocent, it only took on truly guilty bearing when considered in light of the testimony concerning earlier events. Defendant pointed out the weakness of the evidence of events taking place during the relevant period,33 and the government offered the following responses: Att. Gen. For, as all unlawful conversations must have a beginning, it is necessary we should shew something of that, and the time, and that doth fortify the evidence that is given within the time. Sol. Gen. Pray, my lord, if your lordship pleases, this is the use we make in giving in evidence some things before, to shew the fact within the six years, their frequent meeting in a lascivious manner; and we make use of that before the sixth year, to explain what use we make of it in matters done within the six years.34 The court instructed the jury as to the limited purpose for which the evidence might be used: 12 How. St. Tr. at 864. 25. THAYER, supra note 17, at 525. 26. See Julius Stone, The Rule of Exclusion ofS imilar Fact Evidence: America, 51 HARV. L. REV. 988 (1938); Julius Stone, The Rule of Exclusion of SimilarF act Evidence: England, 46 HARV. L. REv. 954 (1933) [hereinafter Stone, England]. 27. Stone, England,s upra note 26, at 958. 28. See infra notes 41-43 and accompanying text. 29. 12 How. St. Tr. 927 (K.B. 1692). 30. The Duke of Norfolk claimed that Germaine "did, by unlawful ways and means, entice away his duchess, by which means he had not the benefit of her society; and, by lascivious conversation, committed adultery with her, and caused her to commit adultery." Id. at 928. 31. Witnesses testified to seeing defendant and the Duchess in bed together during the earlier period. See ida.t 929-33. 32. Among other things, witnesses testified to seeing the defendant and the Duchess together under assumed names. Defendant called into question the credibility of the one witness whose testimony about the latter period was most incriminating. See id. at 934-45. 33. See id. at 939, 945. 34. Id. at 945. 1998] CHARACTER EVIDENCE PROHIBITION 1169 The Defendant pleaded, That he did not commit any thing within these six years: what hath been before, is not now to be taken notice of. But the plaintiff's counsel hath given in evidence some acts before, which is not for any damage they expect, but to explain some actions that have been between them. For my part, I must declare, that these matters may be given in evidence to explain, but they are not to be given in evidence to any other purpose.5 Thus, the trial court admitted the evidence only to demonstrate that the conduct that occurred during the period at issue, supported by highly equivocal evidence, was in fact part of an adulterous relationship. The evidence was not admissible for "any other purpose."" In particular, of course, the earlier conduct itself could not serve as the basis for a verdict against the defendant.37 In the first edition of his 1762 treatise on crown law, Sir Michael Foster commented on the matter in relation to cases of high treason. Based on an English statute,38 Foster wrote that evidence of overt acts not charged in the indictment is inadmissible.39 He then wrote: 35. Id. at 945-46. 36. Id. at 945. The court's determination to admit the evidence for one purpose while forbidding its consideration for another suggests that the court accepted the key assumption underlying the doctrine of limited admissibility: that the jury can be expected to differentiate among potential uses of evidence and that it will abide by an instruction to ignore the evidence for certain logically relevant purposes. For detailed consideration of the doctrine of limited admissibility, see DAVID P. LEONARD, THE NEW WIGMORE: A TREATISE ON EVIDENCE: SELECTED RuLES OF LIMITED ADMISSIBILITY ch. 1 (1996). Unfortunately, the court's assumption that the jury could distinguish among subtly different uses of evidence is highly questionable when applied to the evidence in Germaine, which had high probative value when considered for its forbidden purpose. Clearly, evidence that defendant had engaged in the unlawful behavior at a somewhat earlier time was highly probative on the question of whether he had done the same thing during the period of time over which suit was brought. Interestingly, though the jury ultimately rendered a verdict for the Duke, its damage award was very low, prompting the court to issue a "severe reprimand.., for giving so small and scandalous a fine." Germaine, 12 How. St. Tr. at 948. Eventually, Parliament granted the Duke a divorce. The Duchess married Germaine. See id. 37. There is a narrow way to read the theory behind the court's conclusion in Germaine. Because the prior misconduct occurred more than six years before suit was brought, that conduct clearly could not have been the subject of an action. The court therefore might simply have intended to assure that the statute of limitations would not be violated--that a line would be drawn between acts which could form the predicate for an adverse verdict and those that could not. The court might not have had in mind any "rule" admitting or excluding other acts evidence to show a character-based propensity to commit adultery or otherwise to prove a fact. Thus, it is not possible to know how the court would have ruled as to adulterous behavior committed by defendant within the six-year limitations period, but with a person other than the Duke's wife. 38. See An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 7 & 8 Will. 3, ch. 3 (1695-6) (Eng.). 39. See SIR MICHAEL FOSTER, CROWN LAW 244-46 (photo. reprint 1982) (London, W. Clarke & Sons 1762). The statute provided "[t]hat no[] evidence shall ben] admitted or given of any overt act that is not expresly [sic] laid in the indictment against any person or persons whatsoever." 7 & 8 Will. 3, ch. 3, § 8. Foster explained the statutory exclusionary rule primarily on the basis of surprise: "lest the prisoner should be surprised or confounded by a multiplicity and variety of facts which he is to answer upon the spot." FOSTER, supra, at 244-