An Aggregation Theory of Character Evidence

Journal of Legal Studies (Forthcoming)

SMU Dedman School of Law Legal Studies Research Paper No. 512

28 Pages Posted: 9 Jul 2021 Last revised: 17 Sep 2021

See all articles by Hillel J. Bavli

Hillel J. Bavli

Southern Methodist University - Dedman School of Law

Date Written: July 19, 2020

Abstract

Courts frequently depart from Federal Rule of Evidence 404, which prohibits evidence of a person’s prior acts to prove that the person acted according to a certain character or propensity. This leads to verdicts that are unpredictable and based on behavior not at issue in a case. I develop a theory of “aggregation evidence,” which draws on principles of estimation and data aggregation in statistics and ties together evidence from a broad range of contexts. I apply this theory to analyze the effects of character evidence on accuracy, and to understand why and when courts depart from the rule against character evidence. I show that a type of character evidence that I call “objective-chance evidence” stands apart from other forms of character evidence in its ability to improve accuracy. I then argue that a formal exception for this type of evidence may hold the key to a more coherent rule.

An earlier version of this article can be found at the following address on the author page at: https://ssrn.com/abstract=3664837.

Keywords: character evidence, Rule 404, Federal Rules of Evidence, FRE, doctrine of chances, prior-acts evidence, other-acts evidence, propensity evidence, doctrine of objective chances, judgment variability, unpredictability, accuracy, bias-variance tradeoff, shrinkage estimation, hierarchical model

Suggested Citation

Bavli, Hillel, An Aggregation Theory of Character Evidence (July 19, 2020). Journal of Legal Studies (Forthcoming), SMU Dedman School of Law Legal Studies Research Paper No. 512, Available at SSRN: https://ssrn.com/abstract=3883017

Hillel Bavli (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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