The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases

There is considerable debate as to whether to admit evidence of past sexual assaults in cases where the accused presents a defense of consent to a current sexual assault charge. The consent defense presents a unique situation where, due to the probative value of evidence that suggests propensity to rape, a strong justification can be made to admit this information as evidence. However, critics of this opinion have argued that admitting propensity evidence about the accused in a rape case is inconsistent with the rape shield rule which excludes propensity evidence about the victim. This argument is flawed in the sense that it does not properly take into account the full purpose of rape shield laws, nor does it acknowledge that evidence of a victim\u27s sexual history is less probative than evidence regarding the history of the accused

An Outsider\u27s View of Common Law Evidence

same line by a Newton. There have been improvements since Bentham\u27s jeremiad. But Anglo-American evidence law is still puzzling. It rejects the common-sense principle of free proof in favor of a grotesque jumble of technicalities. It has the breathtaking aspiration of regulating inference by rule, causing it to exalt the foresight of remote rulemakers over the wisdom of on-the-spot adjudicators. It departs from tried-and-true practices of rational inquiry, as when it prohibits courts from using categories of evidence that are freely used both in everyday life and in the highest affairs of state. Sometimes it seems to fear dim light more than deep darkness, as when it tells judges to exclude hearsay even though the declarant cannot possibly give live testimony. At times it treats jurors as fools or bigots; at others it venerates them as sages. To top it all, evidence law\u27s greatest scholars have been among its strongest debunkers. The institutional context in which evidence law operates partly explains and partly justifies its approach to fact-finding, as scholars and judges have recognized. Many of them subscribe to Thayer\u27s view that evidence law is the child of the jury system, and that exclusionary rules are needed to protect the jury against cognitive shortcomings. Others have thought of evidence law mainly as the child of the adversary system, viewing exclusionary rules as an attempt to achieve adversarial fairness - a game with even chances - or to overcome or prevent adversarial distortions of truth. Still others have explained its peculiarities as stemming from a desire to purify courts of perjury and fabrication, or as an attempt to achieve public acceptance of verdicts whatever their accuracy. Of course, these theories can be combined. Mirjan Damaska\u27s Evidence Law Adrift is a major addition to the literature of explanation and critique. Damaska brings an outsider\u27s view - the perspective of one trained in Continental law - to the question why Anglo-American fact-finding is so peculiar (p. 2). He applies an analytical and interpretive approach, one that mainly attempts to identify current justifications rather than historical causes (p. 3). In doing so, he separates Anglo-American institutions that evolved as a single organism - such as the bifurcated judge-jury system - into distinct elements. He then examines each element, testing the current support that it gives to the edifice of evidence law. Damaska\u27s adroitness at isolating procedural features for separate analysis and at contrasting them with their Continental counterparts helps common law scholars see their system in a new light. He has written a book that every evidence scholar should read, and that will be helpful to anyone interested in trials and court procedure