In this paper, I argue that courts should not treat civil parties in quasi-criminal cases the same as criminal defendants because character evidence can be misused as propensity character evidence. Part II of this paper discusses the bar against admitting character evidence. Part III deals with the split among courts as to whether this rule can apply in quasi-criminal cases. Part IV of this paper concludes that courts should resolve this split and refrain from treating civil parties in quasi-criminal cases as criminal defendants because the risk of prejudice does not support this use of the Federal Rules of Evidence.
II. The Inadmissibility of Character Evidence
A. Before the Federal Rules
Federal Rule of Evidence 404 deals with the admissibility of character evidence. FRE 404(a)(1) lists the prohibited uses of character evidence, and states that “Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”1 This concept of “propensity character evidence” has been defined as the use of evidence at trial of either a person's character or a person's trait of character to prove that he or she has a tendency to act in a specific manner.2 Thus, if a person has a tendency to act in a certain way, it's more likely than not that the person acted in conformance with that tendency while committing a bad act.
This concept now embedded in the Federal Rules of Evidence can trace its philosophical underpinnings in prerevolutionary England. Before the 17th century, English courts had very few limitations on what evidence could be admitted into court.3 This court system, which was created in the wake of Norman invasion in 1066, did not value the purpose of a code of evidence law.4 In this system, one could call witnesses who would be able to testify to someone's character, and that character testimony could be used to help prove if the person on trial was guilty. In effect, this system was not set up wherein one was innocent until proven guilty; one was guilty until proven innocent.5 The English began to dismantle this policy with the Treason Act of 1695. The act barred the introduction of evidence of the defendant's prior bad acts that were not included in the indictment.6 Admittedly, this bar was only valid during trials for treason, but the rule and concept eventually spread to other types of criminal trials.7
As the US court system is based upon the English court system, this ban against character evidence became part of our system of justice. In the middle of the 19th century, courts barred evidence of “extrinsic act evidence” in both criminal and civil trials.8 “Courts recognized that people commonly believe they can predict behavior from character, that the accuracy of such a prediction might be 'overpersuaded' by evidence of the accused's extrinsic acts, and that, consequently, the jury may attribute greater weight to the evidence than it...