The Case For Abolishing the Civil Character-Evidence Rule

Abstract

The Federal Rules of Evidence were enacted fifty years ago. The Advisory Committee charged with drafting the rules successfully reformed a good number of common-law rules and failed in its attempts to reform others. But it did not even attempt significant reform of one of the most troublesome rules—the character-evidence rule. Indeed, it declined to seriously consider even a very modest proposal to reform the way the character-evidence rule applies in civil cases. Those espousing change, it declared, “have not met the burden of persuasion.”

This Article takes up that challenge. I argue that Rule 404’s categorical exclusion of character evidence is not justified in civil cases. Both the historical origins of the character-evidence rule and the contemporary justifications offered in its support are infused with concerns about criminal defendants. Both largely ignore differences between criminal and civil litigation. An examination of the Federal Rules’ other relevancy provisions proves the civil character-evidence rule to be an outlier. And a survey of the case law shows that the rule works far too often to exclude evidence that jurors should be allowed to consider. More than modest change is needed; the civil character-evidence rule should be abolished.

Keywords: civil litigation, character-evidence rule