Does character matter?

If you're charged with a crime, it's very possible that the prosecutor will find some way to use -- either directly or indirectly -- your prior criminal record as evidence of your bad character.  This, of course, is likely to make you look guilty in the eyes of the jury.  But what if you've got a squeaky-clean record and have never even been accused of -- let alone arrested for, charged with, or convicted of -- a crime?  Can you use your clean record as evidence of your good, law-abiding character?  The law actually (generally) prohibits you from doing so.  Talk about double standards!  In my new article, I debunk the prosecutorial and judicial justifications for hiding your clean record from the jury, argue for legal reform, and provide defense lawyers with a possible strategy under the existing rules: A Clean Record as Character Evidence, 90 Mississippi Law Journal __ (forthcoming, 2021).  Or read the abstract after the jump.

Character can play a huge role in criminal jury trials. For example, prosecutors often introduce the details of a defendant’s prior conviction to establish, either directly or indirectly, the defendant’s bad character. Prosecutors then argue, or at least imply, that the defendant acted in conformity with that character on the day of the charged crime. 

In other cases, defendants who have maintained a clean record want to use that as evidence of their good, law-abiding character. Surprisingly, however, the law usually does not permit it. Courts have developed two reasons for hiding a defendant’s clean-record evidence from the jury, both of which are deeply flawed. 

First, courts invoke a theoretical objection: it does not necessarily follow from a clean record that the defendant is law-abiding, as he could just be a clever criminal who has evaded detection for years or decades. This Article explains that such reasoning has already been debunked in analogous contexts. Rather, admissibility is determined by relevance, and a clean record easily clears that low hurdle. 

Second, other courts invoke a technical objection: clean-record evidence does not qualify as one of the delineated methods of proving character. This Article explains that, because prosecutors are allowed to use criminal records as evidence of bad character, the principle of symmetry demands that the defendant be allowed to use comparable evidence to demonstrate good character. Further, whether symmetrical or not, rules of evidence must yield to the defendant’s constitutional right to present a complete defense. 

Consequently, this Article proposes simple legal reform permitting defendants to present clean-record evidence to establish their law-abiding character. Additionally, because legal reform is usually slow to materialize, this Article also presents the defense lawyer with a theory of admissibility for such evidence, even under the current rules.