Legitimizing Character Evidence

Modern consensus among legal commentators is that character evidence¿when used to show that an individual behaved in accordance with her predisposition to commit some act¿is an illegitimate form of fact-finding proof. This consensus is codified in the Federal Rules of Evidence, which forbids the use of most ¿propensity evidence¿ at trial. Defenders of the ban suggest, without empirical proof, that jurors would overvalue the probative worth of propensity evidence and that the public would balk at such evidence as a matter of legal procedure. Using insights from social psychology, this Article reports the results of three original experiments, which examine the conditions under which the public might legitimize verdicts that rely on propensity evidence.

These experiments, which surveyed over 1,200 participants, suggest that propensity evidence is a legitimate form of trial proof and that jurors are more competent to evaluate such evidence than policymakers believe.