Karp, David J.

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Response to Professor Imwinkelried\u27s Comments

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Chicago-Kent Law Review Volume 70 Issue 1 Symposium on the Admission of Prior Offense Evidence in Sexual Assault Cases / Symposium on Law Review Editing: The Struggle between Author and Editor over Control of the Text Article 5 October 1994 Response to Professor Imwinkelried's Comments David J. Karp Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview  Part of the Law Commons Recommended Citation David J. Karp, Response to Professor Imwinkelried's Comments, 70 Chi.-Kent L. Rev. 49 (1994). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol70/iss1/5 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact jwenger@kentlaw.iit.edu, ebarney@kentlaw.iit.edu. RESPONSE TO PROFESSOR IMWINKELRIED'S COMMENTSDAVID J. KARP*I would like to thank Professor Imwinkelried for his perceptiveremarks, which reflect agreement with my suggestions on a basicpoint: The current approach to evidence of uncharged acts is unsatis-factory, and alternatives should be considered. Our area of possibledisagreement is whether the desirable alternatives include the pendinglegislative proposal for sex offense cases. Professor Imwinkelried's re-marks raise five major points:The first point is characterizing Rule 404(b) as a "compromise"measure.' However, what's an intermediate approach depends onwhat positions one chooses to characterize as the extremes. Youmight say that Rule 404 is a compromise in that prosecutors and de-fense attorneys dislike it for opposite reasons, but splitting the differ-ence between rival groups of lawyers is not a sound criterion forformulating rules of evidence.I think the pending legislative proposal can fairly be character-ized as a moderate reform measure. It amounts to a kind of codifica-tion of a tendency that has substantial support in both traditional andcontemporary judicial precedent. It does not repeal Rule 404(b)across the board; it does not admit evidence of offenses which aredissimilar in character from the charged offense; and it does not im-pose a mandatory rule of admission that supersedes the general stan-dards of the rules of evidence. It also does not have any effect oncases other than sexual assault and child molestation cases.On the other hand, Rule 404(b) cannot be characterized as a"compromise" position on the admission of evidence of the defend-ant's criminal propensities, because it takes the most extreme possible* Senior Counsel, Office of Policy Development, United States Department of Justice;B.A. 1972, Columbia College; Ph.D. 1975, Massachusetts Institute of Technology; J.D. 1979, Co-lumbia University School of Law. This statement, which is a companion piece to Evidence ofPropensity and Probability in Sex Offense Cases and Other Cases, 70 Ci.-KFr L. REv. 15(1994), was presented as part of an address to the Evidence Section of the Association of Ameri-can Law Schools ("AALS") on January 9, 1993. The statement as printed here is unchangedfrom the text presented to the AALS Evidence Section, except for editing to conform to theChicago-Kent Law Review's conventions regarding citation form and footnote documentation.The bracketed footnotes in this publication were added in the editing process and were notincluded in the original text of the address.[1. Edward J. Imwinkelried, Some Comments about Mr. David Karp's Remarks on Propen-sity Evidence, 70 Cmn.-KEr L. REv. 37, 38.]CHICAGO-KENT LAW REVIEWposition on that issue. It categorically bars the admission of evidencefor that purpose, no matter how probative it is.The second point raised by Professor Imwinkelried's comments isthe comparison to the rules of other common law countries, and par-ticularly England.2 If we make comparisons to foreign legal systems,limiting the scope to common law jurisdictions is a skewed approach.Other foreign systems may be more willing to explore the defendant'scharacter in criminal trials, and to admit information concerning hisearlier offenses. For example, it is stated that in France, "the historyof the accused, including his criminal record, is read out at the begin-ning of the trial."'3 This information is provided to the judges and thejurors4 as a matter of course. In seeking to learn from other countries,the ones we look at shouldn't be limited to a selected class whose rulesfall near one end of the spectrum.Getting back to England, the conditions for admitting this type ofevidence are not that restrictive. The recent English decision cited byProfessor Imwinkelried (R. v. P. )5 was a sex offense case involving adefendant who had been molesting his two daughters. The admissionof the evidence was found to be proper, although the facts were notunusual for that type of offense. The House of Lords expressly heldthat "striking similarity" among the offenses is not required, and dis-approved lower court decisions which held that "similarity beyond...the pederast's or the incestuous father's stock-in-trade" is a conditionof admissibility.6 The English rule also does not limit admission tocases involving any particular number of victims or incidents.7The third point concerns the tendency of courts in the UnitedStates to adopt a broad approach to admission in sex offense cases. 8 Ihave a different impression of the contemporary decisions in this area.For every recent decision that rejects a principle of broad admission in[2. Id. at 39-41.]3. Criminal Law Revision Committee, Eleventh Report-Evidence (General), 1972,Cmnd. 4991, at 49.4. See generally Edward A. Tomlinson, Nonadversarial Justice: The French Experience, 42MD. L. REV. 131, 143-44 (1983) (tribunal in serious criminal cases in France includes three judgesand nine lay jurors); Office of Legal Policy, U.S. Dep't of Justice, The Admission of CriminalHistories at Trial, 22 U. MicH. J.L. Rrs. 707, 751-53 (1989) [hereinafter Histories] (use of jurorsand juries in criminal trials in European systems generally, including decision of European Com-mission on Human Rights upholding admission of previous convictions "even in cases where ajury is to decide on the guilt of an accused.").5. [1991] 3 All E.R. 337.[6. Id. at 337, 339, 346-48.]7. See DPP v. Boardman, [1975] A.C. 421,428, 460 (rejecting defense argument that morethan two instances are required).[8. Imwinkelried, supra note 1, at 42-43.][Vol. 70:49RESPONSE TO PROFESSOR IMWINKELR1ED'S COMMENTSsex offense cases, there is another one that adopts the principle,though achieving that result may require contortionist's tricks withRule 404(b). I have given a few examples in my remarks, and manyothers can be cited. The obstacles to admission are now greater forthe courts, but the inclination to admit the evidence is still there.The fourth point is inferences from the practices of Americancourts in this area.9 Courts in the United States have never been com-pelled to admit evidence of similar crimes on a broad basis in sex of-fense cases. If they did not believe that this type of evidence wasmore probative than prejudicial, they would not have admitted it.When one examines the decisions that have adopted special rules forsex offense cases, they do not say that the protection of possibly inno-cent defendants must be sacrificed in order to nail sex offenders byany possible means. Rather, the decisions tend to focus on the proba-tive value of this type of evidence, and the need to admit it in order toachieve accurate verdicts.For example, in State v. Charles L.,10 the Supreme Court of WestVirginia adopted an overt "lustful disposition" exception for child mo-lestation cases, despite state evidence rule 404(b), and despite earlierprecedent to the contrary." Following a review of the issues of proofin child molestation cases, the court concluded that "[i]n considerationof all these factors, the probative value of such testimony far out-weighs the potential for unfair prejudice.' 2The fifth point is the import of empirical studies of character.13However, the case for the proposed rules does not depend on contro-versial theories about the nature of human character.Is past criminal conduct predictive of subsequent criminal con-duct? The point is taken for granted in other contexts. For example,the defendant's criminal history weighs heavily in pre-trial release de-terminations and in sentencing decisions, both as a statutory matterand as a matter of judicial discretion. It often determines whether adefendant is locked up or set free before trial, and whether he is im-prisoned for 20 years rather than 5 after conviction. This is primarilybecause what a defendant has done in the past is taken as a goodindication of what he's likely to do in the future if not adequatelyrestrained or deterred.[9. Id. at 43.]10. 398 S.E.2d 123 (W. Va. 1990).[11. Id. at 131-33.][12. d. at 133.][13. Imwinkelried, supra note 1, at 43-46.]19941CHICAGO-KENT LAW REVIEWSusan Davies' article, 14 cited by Professor Imwinkelried, differswith his view of the import of the psychological theories described inthat article. The author rejects the argument that psychological theoryentails the unreliability of character evidence in the form of a few inci-dents or a single incident. 15 She notes that some legal commentatorshave fallaciously argued that such evidence is not probative of con-duct because one or two observations do not support an inference ofbehavioral consistency in varying situations.16 However, she rebutsthis argument by observing that "where situations are similar, past be-havior is an excellent indicator of a person's likely future behavior.'17Davies' article also concludes that contemporary psychological find-ings do not substantiate the view that character evidence is likely to beprejudicial.' 8A more basic response to the alleged uncertainty of predictinglater conduct from earlier conduct is that the objection simply miscon-ceives the issue. The question is not one of predicting in the abstractthat a person will commit crimes, or of predicting that he will do so incertain situations. Rather, the question of admission arises wherethere is specific non-character evidence that a crime has been commit-ted, and that the defendant is the one who did it. In sex offense cases,this normally includes the victim's accusation. The hypothesis of thedefendant's innocence then depends on the possibility that the victimis lying or mistaken, and that the other evidence of guilt is also false ormisleading.Presenting the charged incident in isolation from the defendant'sbroader course of conduct does not provide the basis for a fair assess-ment of this possibility. For all the jurors know, they are being askedto credit charges of heinous conduct against a person who is not crimi-nally disposed in general, and who has otherwise led a blameless life.This misleading portrayal of the case can be corrected throughthe admission of evidence of similar conduct of the defendant onother occasions, which tends to show that he is capable of committingsuch crimes, and disposed to do so. A defendant's history of sexuallyassaultive conduct evidences a willingness to engage in violence to co-[14. Susan Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27CRAM. L. BuLL. 504 (1991).][15. Id. at 519-20.][16. Id. at 519.]17. See id. at 519-20.18. Id. at 523-33; see also Histories, supra note 4, at 732-33 (finding that juries are morelikely to acquit than judges though aware of the defendant's criminal record in a large propor-tion of all cases).[Vol. 70:49RESPONSE TO PROFESSOR IMWINKELRIED'S COMMENTSerce sexual acts. A defendant's history of child molestation providesevidence that children are within his zone of sexual interest. Thevalue of this type of evidence in assessing the plausibility of the chargeis not limited to cases involving a strikingly similar series of crimes ornumerous uncharged incidents. How great that value is under thefacts of particular cases is properly a question for the jury.Finally, I would emphasize the importance of taking account ofconsiderations of probability in rethinking the rules in this area, aswell as considerations relating to character or propensity. For exam-ple, the Boardman case in England 19 involved a headmaster who wassoliciting sex from students in his school. The case is often describedas establishing the admissibility of evidence of character in certain cir-cumstances, but the debate in the case shows reliance on a differentrationale-the improbability that multiple victims would indepen-dently fabricate similar stories. Inferences relating to probability are adistinct and equally important rationale supporting the admission ofevidence of similar crimes. Analyses that fail to take account of thispoint are overlooking half of the issue.19. DPP v. Boardman, [1975] A.C. 421.1994]

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Response to Professor Imwinkelried\u27s Comments

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