Criminal Corporate Character

37 Pages Posted: 15 Aug 2014

See all articles by Robert E. Wagner

Robert E. Wagner

City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law

Date Written: August 15, 2014


In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit the use of this information in a prosecution for such crimes. The reasons for this prohibition are based in historical anomalies, a mistaken understanding of corporate function, and a misplaced anthropomorphism of the corporation. This combination of errors has resulted in the questionable practice of excluding relevant evidence in cases where the justifications for exclusion are either nonexistent or weak and the benefits of admitting the evidence clearly prevail. This Article demonstrates the fallacies of this continued practice and argues in favor of change. Specifically, this Article shows why evidence concerning the character of a corporation should be allowed in criminal settings to prove that the corporation acted in conformity with that character on the date in question. Courts so far have not given much consideration to the question and have simply assumed that the character evidence rules apply to corporations. I base my objections to this practice on the goals of corporate criminal liability, the inherent weaknesses of the character evidence rules generally, and the way in which corporate structure exacerbates those weaknesses. Lawyers should argue that the character evidence rules do not apply to corporations, judges should decide accordingly, and legislatures should amend both the Federal Rules of Evidence and their state counterparts to make it unambiguously clear that corporations are not covered by the same principles regarding character as individuals.

Keywords: corporations, evidence, white collar crime, character, corporate crime

JEL Classification: K22, K14

Suggested Citation

Wagner, Robert E., Criminal Corporate Character (August 15, 2014). 65 Florida Law Review 1293 (2013), Available at SSRN:

Robert E. Wagner (Contact Author)

City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law ( email )

New York, NY
United States

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