Friday, March 17, 2017
Michael D. Cicchini and Lawrence T. White (Independent and Beloit College) have posted Convictions Based on Character: An Empirical Test of Other-Acts Evidence (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:
Despite the time-honored judicial principle that “we try cases, rather than persons,” courts routinely allow prosecutors to use defendants’ prior, unrelated bad acts at trial. Courts acknowledge that jurors could improperly use this other-acts evidence as proof of the defendant’s bad character. However, courts theorize that if the other acts are also relevant for a permissible purpose — such as proving the defendant’s identity as the perpetrator of the charged crime — then a cautionary instruction will cure the problem, and any prejudice is “presumed erased from the jury’s mind.”
We put this judicial assumption to an empirical test.
The difference in conviction rates is statistically significant. Further, jurors in Group B were also more confident in their verdicts despite receiving less certain evidence of guilt and a cautionary instruction. These empirical findings demonstrate that cautionary instructions are not effective, and jurors will use other-acts evidence for impermissible purposes including, for example, the forbidden character inference. Given this, we discuss several pretrial strategies for defense counsel to limit the prejudicial impact of other-acts evidence.