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Character evidence, Rape shield laws, Admissibility, Victim promiscuity evidence


Criminal Law | Criminal Procedure | Evidence | Litigation


In virtually every jurisdiction in the United States, the law of evidence prohibits parties from offering proof of an individual's general character traits to suggest that, on a specific occasion, the individual behaved in a manner consistent with those traits. In a criminal trial in particular, the law prohibits a prosecutor's introduction of evidence about the defendant's character as proof of his guilt. In this Article, Professor Colb proposes that the exclusion of defendant character evidence is appropriate in one category of cases but inappropriate in another. In the first category, which Professor Colb calls "whodunit" cases, the parties agree that a crime was committed but disagree over whether it was the defendant who carried out the crime. In such cases, character evidence about the defendant ought to be excluded, because the defendant's salience in the courtroom may make his character traits appear far more damning than they actually are, given the many "bad" people outside the courtroom who could have committed the offense. In "what was done" cases, by contrast, the prosecutor and defense agree that the defendant was involved in the transaction being litigated but disagree over whether his role was criminal. In such cases, character evidence about the defendant is not misleading, because there is no potential third party with the same trait who could have committed the offense: either the defendant did it or no one did. In these cases, the defendant's character traits can help the jury determine what happened. Professor Colb demonstrates that the "whodunit" versus "what was done" dichotomy also provides a way of determining when evidence of a victim's character traits ought to be admissible. In particular, Professor Colb explores the interplay between her dichotomy and the rape shield laws, which exclude victim promiscuity evidence in rape cases. She concludes that because of a concept she develops and terms "conditional irrelevance," promiscuity evidence is irrelevant in rape cases and ought to be excluded for that reason.

Publication Citation

Published in: North Carolina Law Review, vol. 79, no. 4 (May 2001).