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I, being a non-expert in any country's/state's law, was somewhat surprised when it was said that propensity evidence isn't, in Wisconsin, legal evidence; see between 5.57 - 8.15 in this video about the Rittenhouse trial.

I thought that propensity evidence could be seen as circumstantial evidence. This is not the case in Wisconsin (at least not usually). So my question is, are there any states/countries you know of where propensity evidence is allowed, whether generally or in exceptional cases?

EDIT:

The following is in response to @ohwilleke's answer.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

The item (...) such as proving motive (...) catches my eye. If I understand correctly, the propensity evidence must suggest motive without invoking an argument reliant on character. Let me explain my (mis)understanding with an example:

The defendant is on trial for theft. They have a criminal history of theft. The prosecutors say that due to the propensity evidence, the defendant has a thieving character (or more extremely, has kleptomania), and thus, has motives for theft.

In the above example, the propensity evidence is inadmissible, because it argues via character, despite ultimately making a claim about motive.

An allowed example would then be:

The defendant is on trial for the theft of ancient Egyptian relics. The defendant has a criminal history of stealing ancient Egyptian relics. The prosecutors use this propensity evidence to suggest the defendant has a collection of Egyptian relics, and/or a fascination/obsession of/over ancient Egyptian relics.

The first suggestion is not a matter of character, but simply a claim about the defendant possessing a collection. The second suggestion is more borderline, as whether one is to view "a fascination/obsession of/over ancient Egyptian relics" as a part of their character, or as merely a non-physical possession/quirk is hard to say for me.

So, is my understanding correct?

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  • 2
    "In the following example, the propensity evidence is inadmissible" – do you mean "in the preceding example"? As your question is now, you list two examples, and it looks like you're saying nothing about the first example, and you're saying that the second example is both inadmissible and allowed. Dec 2 '21 at 12:02
  • @TannerSwett Yes, mixed up my words there, thanks!
    – user110391
    Dec 2 '21 at 19:00
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The short answer is that propensity evidence can only be circumstantial evidence and that it is generally inadmissible.

But we should start by clarifying what "circumstantial evidence" means. It is not the opposite of legal evidence, but more like the opposite of direct evidence. Direct evidence is evidence that independently establishes a fact in question, while circumstantial evidence is evidence that gives rise to an inference that a fact in question is true. There is a misconception that circumstantial evidence is somehow inadmissible or inferior to direct evidence, but the truth is that the vast majority of evidence is circumstantial.

So if you are on trial for murder, direct evidence would include your confession, an eyewitness account of the murder, and surveillance video of you killing the victim. Circumstantial evidence would include things like the victim's blood on your clothes, a taxi driver's testimony that he dropped you off at the victim's apartment just before the murder happened, or surveillance video of you exiting the cab and entering the apartment.

Propensity evidence is evidence that a person is likely to have acted one way in this case because they have acted that same way in the past. It is therefore never going to be direct evidence and always going to be circumstantial evidence, because it never explicitly says "the defendant did it," but rather says "the defendant did it before, so maybe he did it again."

The general rule is that propensity evidence is inadmissible. Fed.R.Evid. 404(b). It sometimes comes in anyway, though, for various reasons. If a defendant is facing trespass charges, for instance, a prosecutor would want to introduce evidence that the defendant has previously been convicted of trespassing. The defense will object that it's propensity evidence, but the prosecutor will respond that it's admissible if he's using it to establish something other than the likelihood that the defendant did the same thing again. If the prosecutor needs to prove that the defendant knew he was not allowed on the property, the trespass conviction is very strong evidence on that point.

Another common exception is in sexual-assault cases, where some jurisdictions allow this type of evidence. Indeed, Wisconsin is among the states that explicitly permit evidence of the defendant's previous convictions for certain sex crimes to demonstrate that he committed a sex crime again in the current case. WI Stat § 904.04(2)(b).

Louisiana likewise allows propensity evidence to establish that the defendant has a history of "sexually assaultive behavior" or a "lustful disposition toward children." C.E. 412.2. Likewise, the defendant may be able to introduce evidence that the victim previously consented to sex and is therefore likely to have consented to sex in the current case. C.E. 412.

EDIT: To address your examples, then, I would say that that the first would probably not survive a Rule 404(b) objection, and the second one would stand a better chance. On the second one, the defense should argue that the court should allow evidence of the defendant's interest in Egyptology, but not evidence of the convictions, as that would allow the jury to consider his motive without being diverted into propensity territory. The prosecution should probably counter that the defendant's convictions show more than just the existence of a motive, but also the strength of that motive, as well as perhaps that the defendant had the prior knowledge and skill that would be necessary to pull off a museum heist. The judge could go probably rule either way without being reversed.

I would clarify one point on how to analyze and characterize this evidence: Rule 404 deals with propensity evidence, i.e., evidence that is meant to demonstrate that a person acted in conformity with his character. Subsection (a) deals with establishing propensity through "character evidence," which is evidence that the defendant's character or character traits are consistent with the conduct in question at trial; while subsection (b) deals with establishing propensity through "other acts" evidence, which is evidence that the defendant previously engaged in conduct that is consistent with the conduct at question of trial.

Both types of evidence -- character evidence and other-acts evidence -- are inadmissible to establish propensity, but they may be admissible to establish motive, plan, preparation, etc. So when your defendant's previous convictions are offered to prove motive to expand his Egyptology collection and not to establish propensity, the court could allow them into evidence not because they are admissible propensity evidence, but rather because they are not propensity evidence at all.

8

For convenience, I am listing federal rules of evidence, but Wisconsin would have substantially similar rules.

The law makes no real distinction between direct and circumstantial evidence. But many rules of evidence regulate propensity evidence and when it can be considered. Propensity evidence is a subset of "character evidence." Propensity evidence is evidence a person's character that suggests that the person is likely to act in a particular manner. Usually, propensity evidence is irrelevant as a matter of law, under a specific rule, but there are important exceptions to this general rule and this is overall one of the more complicated part of the rules of evidence that apply at trial.

The case law under these rules is also involved and complex and subtle and not entirely internally consistent.

The main rules of evidence relevant to propensity in the federal rules of evidence are:

Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts

Rule 405. Methods of Proving Character

Rule 406. Habit; Routine Practice

Rule 407. Subsequent Remedial Measures

. . .

Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition

Rule 413. Similar Crimes in Sexual-Assault Cases

Rule 414. Similar Crimes in Child Molestation Cases

Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

. . .

Rule 608. A Witness’s Character for Truthfulness or Untruthfulness

Rule 609. Impeachment by Evidence of a Criminal Conviction

Rule 610. Religious Beliefs or Opinions

. . .

Rule 701. Opinion Testimony by Lay Witnesses

Rule 702. Testimony by Expert Witnesses

Rule 703. Bases of an Expert’s Opinion Testimony

Rule 704. Opinion on an Ultimate Issue

Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion

Rules 404 and 406 provide the core substantive general rules, with most of the other rules applying to more specific circumstances. These rules say:

Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

and

Rule 406. Habit; Routine Practice

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

UPDATE related to revision of question:

The item (...) such as proving motive (...) catches my eye. If I understand correctly, the propensity evidence must suggest motive without invoking an argument reliant on character. Let me explain my (mis)understanding with an example:

The defendant is on trial for theft. They have a criminal history of theft. The prosecutors say that due to the propensity evidence, the defendant has a thieving character (or more extremely, has kleptomania), and thus, has motives for theft.

In the above example, the propensity evidence is inadmissible, because it argues via character, despite ultimately making a claim about motive.

Criminal convictions are admissible if the defendant testifies in most cases, per Rule 609.

But, to admit evidence of a prior criminal conviction if the defendant doesn't testify, pursuant to Rule 404(b)(2), the most common argument is described as "modus operandi" (often abbreviated "M.O.") which is making a claim not just that people who have prior criminal records are more likely to commit crimes in the future (which incidentally is unequivocally true, but its excluded as a matter of law as irrelevant for policy reasons), but that the similarities between the prior act or crime and the current one distinctively suggest that in this case this particular defendant was especially likely to be engaged in a crime basically, relatively to a random person even if that random person happened to have a criminal record.

For example, suppose someone's house key is stolen from their purse, but the prosecutor wants to press charges not just for larceny, but for attempted burglary. The prosecutor could introduce that this particular defendant has two prior convictions for stealing house keys and then using that house key to come into someone's house while they are away from home to steal things from their home, in order to show that the defendant's motive for stealing the house key was not to simply steal a $2 duplicate piece of metal, but to use that key as a first step in a larger plan to burglarize a home which is a much more serious offense.

In contrast, a prior conviction for securities fraud, while it might show dishonestly in general and might be admissible if the defendant testified, would not be admissible to show that the theft of the house key from someone's purse was part of a larger plan to burglarize that person's home.

An allowed example would then be:

The defendant is on trial for the theft of ancient Egyptian relics. The defendant has a criminal history of stealing ancient Egyptian relics. The prosecutors use this propensity evidence to suggest the defendant has a collection of Egyptian relics, and/or a fascination/obsession of/over ancient Egyptian relics.

The first suggestion is not a matter of character, but simply a claim about the defendant possessing a collection. The second suggestion is more borderline, as whether one is to view "a fascination/obsession of/over ancient Egyptian relics" as a part of their character, or as merely a non-physical possession/quirk is hard to say for me.

Both kinds of evidence in this example would be character evidence that is admissible pursuant to 404(b)(2). The first is evidence of character relevant to show motive, motive, knowledge, absence of mistake, and lack of accident. It shows the character trait of being an Egyptian relics lover. The second would be admissible to show modus operandi (which is something of an amalgam of the 404(b)(2) factors).

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  • I have edited my question in response to your answer, asking for some elaboration on (b), (2).
    – user110391
    Dec 1 '21 at 20:49
  • 1
    I think your new examples have a new problem, which is that they conflate character evidence with propensity evidence; character evidence says a person committed X because X is consistent with some character trait, while propensity evidence says a person committed X because he has commited X in the past. Sometimes, but not always, these overlap; for instance, when the trait is essentially a component of the crime -- dishonesty in a theft or perjury case, violence in an assault case. Either way, though, character evidence is likewise generally inadmissible.
    – bdb484
    Dec 2 '21 at 1:03
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    @bdb484 Character evidence is inadmissible to show propensity, but it admissible to show almost anything else. "propensity evidence says a person committed X because he has commited X in the past" this is only by virtue of a trait which is a propensity to do that. The prior acts are used as evidence of a character trait.
    – ohwilleke
    Dec 2 '21 at 18:20
  • @bdb484 Not sure if I get your point. I'm not conflating anything, as far as I know. My first example deliberately picks a case where the evidence is both propensity and character evidence, as a demonstration of what I understand to be inadmissible evidence. My second example attempts to pick a different case where this is not the case, so as to ask: "since this propensity evidence is not character evidence (but instead evidence for motive), is it thus admissible?"
    – user110391
    Dec 2 '21 at 19:13
  • 1
    @user110391 OK. I think I understand where you're coming from now. I've added to my answer below to address the examples.
    – bdb484
    Dec 2 '21 at 21:55

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