Tuesday, March 7, 2017

Convictions Based on Character: An Empirical Test of Other-Acts Evidence (forthcoming, Florida L. Rev.)

When it comes to the state using other-acts evidence at a defendant’s trial, the words of Henry Fool ring true: “So my word is not enough; my promise worthless; the fact that I have served my time nothing but the emblem of my continuing guilt.”  In other words, despite the courts’ assurances that “we try cases, rather than persons,” a defendant never really gets a fresh start; he is always haunted by his past.  And the other-acts evidence doesn’t have to be in the form of a prior conviction.  Even a decades-old, uncharged allegation can be used against a defendant.  And even if the defendant went to trial and beat the prior case, the other acts might still be used against him.  (Here, prosecutors abandon their “trials are about truth” mantra and instead argue that a prior acquittal only means that the other acts weren't proved beyond a reasonable doubt.)

But don’t worry for the defendant who must fight not only a current allegation but also age-old unproven, or even disproved, allegations.  The trial judge will give a cautionary instruction which is presumed to wipe all prejudice from the jury’s mind.  So in our most recent controlled-study-turned-law-review-article, my coauthor Lawrence White and I tested this claim.  In so doing, we found that cautionary instructions are not effective and jurors will use other-acts evidence for impermissible purposes, including the forbidden character inference.  To learn more, including some possible approaches to countering other-acts evidence on behalf of your clients, see the pre-publication draft of our article, forthcoming in the Florida Law Review, titled Convictions Based on Character: An Empirical Test of Other-Acts Evidence.

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