Publication Date



The rule prohibiting evidence of the accused's bad
character is steadily degrading as courts and legislatures
expand existing exceptions and add new ones. In Georgia,

we saw the rule almost disappear as trial courts blithely
admitted a defendant's past crimes to prove his or her
"bent of mind" to commit the crime charged. This Article
examines why the character rule is losing ground.
The thesis is that a rule requiring as much careful
balancing as the character rule needs a clear, strong
justification to hold its own when faced with competing
claims to admit the evidence in the search for truth. The
most widespread justifications offered for the character
rule are neither clear nor strong. They rely heavily on a
claim that the rule prohibiting character evidence
improves accuracy and the search for truth-a claim that
is difficult to defend. The character rule is best viewed as
a moral position rather than an epistemic tool. The rule
defends the presumption of innocence and a moral
preference to err on the side of acquittal-even if that
means "the truth" is unrevealed in some instances. Unless
this moral justification for the character rule is revived
and replaces the current weak, epistemic justification in
the minds of judges and legislators, the rule will continue
to degrade.