Wednesday, August 13, 2014
Colin Miller (University of South Carolina School of Law) has posted Freedom of Character: Creating a Constitutional Character Evidence Test (Carolina Academic Press Book, Forthcoming) on SSRN. Here is the abstract:
This essay seeks to fill a scholarly and judicial void by proposing a First Amendment test that courts should apply when prosecutors seek to introduce defendants’ speech as character evidence. Under this constitutional character evidence test, assuming that the defendant can prove that his words are protected under the First Amendment, the prosecution would have to do more than simply satisfy the rules of evidence; it would also have to prove that application of the rules of evidence to the defendant’s words is narrowly tailored to advance a compelling state interest.