Restocking the Deck

Though we give lip service to the idea that our justice system is actually about seeing justice done, not just winning cases, “innovations” in the courts routinely streamline the process, making convictions easier to obtain and allowing the introduction of evidence which is irrelevant to determining whether the defendant committed the crime. Each new milestone distorts the truth finding process by painting defendants as unmitigatedly bad people who must have done something, if not what is charged.

A major culprit in the shift is Federal Rules of Evidence 404(b), which allows for evidence of “prior bad acts.” Such evidence usually comes in two varieties: (1) criminal history and (2) acts that the government wishes to charge, but can’t actually prove are criminal. Though the text of the rule swears it is not to be used to merely paint the defendant as a bad person, that is exactly what it does. There is, both in fact and rhetoric, no practical difference proving that a person has a propensity to commit crime, and proving absence of mistake, or likelihood of motive. Where there may be fringe cases where the rule is not completely illegitimate, they are exceedingly rare.

            The first case to challenge it, Huddleston v. United States, in 1998, shows the typical use of this rule. The feds wanted to convict him of buying stolen goods, but they had absolutely no evidence that anything had actually been stolen. So it paraded a series of accusations in front of the jury, and urged the defendant to disprove them. Not surprisingly, he was found guilty. A unanimous Supreme Court upheld it, though it was potentially troubling, because it had boundless unfounded confidence that no defendant would be convicted through a string of innuendo. Ignoring that this was exactly what had happened, the court assumed it would never (again) happen in the future, based on nothing.

            With the increased success in obtaining convictions, especially in marginal cases, and those involving drug and sex/porn offenses, the states began enacting their own versions of 404(b). Later, the federal system also enacted rules 413-415, which eliminated the modest requirements of relevancy and weighting unfair prejudice against probative value. Though evidence almost always passed the test anyway, Congress wanted to eliminated even the possibility that something would get thrown out.

            Propensity evidence has long been considered unfair, due to its tendency to mislead and confuse jurors, getting them to convict on improper basis, assuming that the accused is a bad man. By adopting these rules, Congress has decided it is unconcerned with fairness or propriety. It has adopted a win at all costs mentality that is supposed to be foreign to our system And every state that has followed their lead has compounded the error.

            A system that disregards the risk of wrongful convictions, and deliberately increases it is not a just one. Every time we decide that certain groups of people don’t deserve protection, we diminish the fairness and legitimacy of our system, for those removals always go further than the evil of the day. And a prosecutor who is told that convicting scumbags justifies cutting corners will inevitably cut corners in deciding who is a scumbag. 

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