EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, August 14, 2012

My New Article: Justice of the Peace?: Why Federal Rule of Evidence 404(a)(2)(C) Should be Repealed

Yesterday, I posted my new article, Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed, on SSRN. Here is the abstract:

In two 2012 opinions, Commonwealth v. Bedford and State v. Williams, courts rejected appeals by convicted homicide defendants sentenced to life imprisonment. Each defendant claimed that his victim was the first aggressor, prompting the prosecution to present character evidence concerning the victim’s character for peacefulness even though neither defendant claimed that his victim was generally a violent person. The prosecution in both cases presented this character evidence under a state counterpart to Federal Rule of Evidence 404(a)(2)(C), a frequently applied exception to the general rule that propensity character evidence is inadmissible.  

Rule 404(a)(2)(C) and its state counterparts are thus the one exception to the general “Pandora’s box” theory which deems propensity character evidence inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character and/or evidence of the victim’s bad character. The Rule is also the rare exception to our evidentiary and constitutional framework that almost always treats criminal defendants at least as well as, and usually better than, their civil counterparts. Worst of all, this anomalous Rule treats criminal defendants worse than civil defendants in the very type of case in which the accused has the most at stake and faces the largest deployment of investigatory and prosecutorial resources. Accordingly, this article argues for the repeal of Federal Rule of Evidence 404(a)(2)(C) and state counterparts.  

And thoughts or comments on it would be appreciated and can be sent to: Mille933@law.sc.edu.

I also posted my recent essay, No Expertise Required: How D.C. Has Erred in Expanding its Expert Testimony Requirement, which appeared in the Rutgers Law Record, on SSRN. Here is the abstract:

In addressing an appeal by Allen Iverson from a negligent supervision verdict against him, the United States Court of Appeals for the District of Columbia noted that the former NBA star’s “argument stem[med] from a peculiar aspect of common law negligence in the District of Columbia.” That peculiar aspect is D.C.’s expert testimony requirement, which requires expert testimony to establish the pertinent standard of care unless the subject in question is within the realm of common knowledge and everyday experience of the jurors. Such a requirement is not anomalous in the professional malpractice context, and the Iverson court claimed that D.C.’s requirement was in fact born out of such cases.  

According to the court, though, the D.C. Court of Appeals has deviated from the norm by “[r]ecently…requir[ing] expert testimony in a wider variety of cases,…even those that might initially seem to fall within jurors’ common knowledge.” Such cases include disputes regarding the application of hair relaxer, the placement of monkey bars eight feet above hard packed mud, and the failure to remove a dead, prominently leaning tree. In each case, the result is the same: The D.C. Court of Appeals finds that the plaintiff cannot recover without expert testimony concerning the pertinent standard of care. This essay argues that D.C. has improperly expanded its expert testimony requirement and should circumscribe it to malpractice cases and trials involving truly technical matters.



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