Vanderbilt Law Review

First Page



Perhaps no rules of evidence are as contested as the rules governing character evidence. To ward off the danger of a fact finder's mistaking evidence of character for evidence of action, the rules exclude much contextual information about the people at the center of the proceeding. This prohibition on character propensity evidence is a bedrock principle of American law. Yet despite its centrality, it is uncertain of both content and application. Contributing to this uncertainty is a definitional lacuna. Although a logical first question in thinking about character evidence is how to define it, the Federal Rules of Evidence have never offered an answer. The rules exclude character evidence offered to prove action in conformity with the character but do not specify what is meant by character.

At this fiftieth anniversary of their enactment, however, it is apparent that the Federal Rules governing character evidence and their state analogs do operate from a definitional premise. They assume a baseline figure whose attributes inform the way the rules guard against negative character propensity reasoning. The baseline most strongly resembles a middle-class, cisgender white man.