Faculty Journal Articles and Book Chapters

Title

An Aggregation Theory of Character Evidence

ORCID (Links to author’s additional scholarship at ORCID.org)

https://orcid.org/0000-0003-4888-2842

Abstract

Courts frequently depart from Federal Rule of Evidence 404, which prohibits evidence of a person’s prior acts to prove that the person acted according to a certain character. This leads to verdicts that are unpredictable and based on behavior not at issue in a case. I develop a theory of aggregation evidence, a new concept that draws on principles of estimation and data aggregation in statistics and ties together evidence from a broad range of contexts. I apply this theory to analyze the effects of character evidence on accuracy and to understand why and when courts depart from the rule against character evidence. I show that a type of character evidence that I call objective-chance evidence stands apart from other forms of character evidence in its ability to improve accuracy. I then argue that a formal exception for this type of evidence may lead to a more coherent rule.

Publication Title

The Journal of Legal Studies

Publication Date

2022

Document Type

Article

Keywords

character evidence, Rule 404, Federal Rules of Evidence, FRE, doctrine of chances, prior-acts evidence, other-acts evidence, propensity evidence, doctrine of objective chances, judgment variability, unpredictability, accuracy, bias-variance tradeoff, shrinkage estimation, hierarchical model

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Digital Object Identifier (DOI)

https://doi.org/10.1086/716202