Wednesday, August 8, 2018
Frederic Bloom (University of Colorado Law School) has posted Character Flaws (University of Colorado Law Review, Vol. 89, No. 4, 2018) on SSRN. Here is the abstract:
Character evidence doctrine is infected by error. It is riddled with a set of pervasive mistakes and misconceptions—a group of gaffes and glitches involving Rule 404(b)’s “other purposes” (like intent, absence of accident, and plan) that might be called “character flaws.” This Essay identifies and investigates those flaws through the lens of a single, sensational case: United States v. Henthorn. By itself, Henthorn is a tale worth telling—an astonishing story of danger and deceit, malice and murder. But Henthorn is more than just a stunning story. It is also an example and an opportunity, a chance to consider character flaws in evidence law more broadly and an occasion to remedy them too. This Essay makes use of that occasion. It critically examines Henthorn: the arguments offered, the tactics deployed, the opinions written, the evidence used. And it frames Henthorn as a window into contemporary character flaws more broadly, hoping to prompt an overdue conversation, both in the courtroom and in the classroom, about the flaws that now infect character evidence.