The general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to evidence of an accused’s uncharged crimes.As a 2023 United Kingdom Law Commission report points out, that country has abandoned a rigid, formal character prohibition and allows trial judges to balance the probative value of specific acts evidence against the incidental probative dangers of the evidence. The American Federal Rules of Evidence do not go that far, but in sexual assault and child abuse cases Rules 413-15 carve out exceptions to the character prohibition. Many leading American commentators have contended that the United States should move farther in the direction of narrowing the prohibition. In 2021, drawing on the work of previous commentators, Professor Steven Goode published an article making a persuasive case that federal courts ought to admit highly probative evidence of very specific propensities. However, Rule 404(b) seems to stand in the way of doing so.In early 2023, the lead author of this article and a coauthor published an article discussing the admission of prior racist acts in hate crime prosecutions. To a degree the article dovetails with Professor Goode’s contention; the article develops an argument that if adopted, could move American character law in the direction Professor Goode favors. The 2023 article presents seven different “gateways” for introducing evidence of prior racist acts. One potential gateway is of special importance in the current Age of Statutes. That gateway is a novel contextual statutory construction argument: Since Federal Rule 404(a) governing reputation and opinion character evidence states the general prohibition as applying to “character trait[s]” as well as “character” but Rule 404(b) governing specific acts testimony mentions only “character,” proof of a specific character trait could be considered a permissible purpose under Rule 404(b).This is essentially a contextual statutory construction argument. This is the textualist era. In this era contextual arguments based on related statutes carry special force. Textualists maintain that extrinsic legislative history materials are entitled to less weight because they are subject to manipulation by special interest groups and lack the force of law. Unlike those materials, contextual provisions enjoy the force of law; and assigning considerable weight to such provisions does not raise separation of powers concerns.The authors of the 2023 article do not describe themselves as textualists or suggest that a court may embrace their argument only if the court subscribes to textualism. However, the reality is that today textualism is clearly the dominant school of statutory interpretation, especially in federal court. Hence, the purpose of this article is to present a textualist analysis of the contextual statutory construction argument regarding the character/character trait distinction. The article reviews the pertinent text, contextual provisions, and extrinsic materials: the Advisory Committee Notes to Rules 404-05, 413-15, and 608-09.The contextual argument is certainly viable. Rule 404(a) is a salient part of the context for interpreting Rule 404(b); the two provisions are very close together in the same Rule. However, there are other parts of the context, other related statutes; and a close examination of the wording of those statutes reveals that the drafters used “character” and “character trait” loosely in those provisions. The same inconsistent use of the terms is evident in the pertinent Notes. Thus, it cannot be said definitively whether by omitting “character trait” in 404(b) the drafters intended to signal that character trait evidence is admissible under 404(b).The textualist analysis of the contextual argument demonstrates that one of the root causes of the present uncertainty about the scope of Rule 404’s character prohibition is a larger problem, namely, the loose usage in the pertinent Rules and Notes. The present article therefore identifies two possible courses of action for the Rules Advisory Committee. One is to provide working definitions of the terms, “character” and “character trait.” Commentators vary in their understanding of those terms; but given the inconsistent usage in the wording of the Federal Rules and the Notes, that variation is expectable. A second option would be for the Committee to invite a wider discussion of the policy issues that make the scope of the character prohibition such a controversial issue. The combination of Professor Goode’s 2021 article, the 2023 United Kingdom Law Commission report, and the recent 2023 article makes this an opportune time for that discussion. To be sure, resolving those issues would not be easy. However, in light of the enormous amount of time that the courts devote to disputes over Rule 404(b), addressing those fundamental issues might be worth the effort. If any Federal Rule deserves a hard look by the Committee, it is Rule 404(b).
ABSTRACT A vast literature has developed probing the law's aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as US law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible and sufficient for a verdict when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems.
美国《联邦证据规则》产生于法典化运动的背景下,一波三折的制定过程与四十多年来的发展历程是证据法领域独树一帜的存在.从《联邦证据规则》的演进历程来看,其主要发展趋势是:负责修订证据规则的专门机构从无到有,证据规则咨询委员会发挥愈加重要的作用;证据可采性的范围逐渐扩大,随着规则灵活性的增强,法官的审查义务逐渐加重;程序保障的程度不断增强;科技进步为证据认定带来便捷的同时,也动摇了传统的以证人为中心的证据法框架.对我国而言,证据法的发展面临着机遇和挑战,在立法上中国特色社会主义法治体系不断完善,司法上推进繁简分流和庭审实质化改革,技术上区块链等新兴事物层出不穷的新时代背景下,考察《联邦证据规则》的制定与发展趋势,可以为我国的证据法典化提供启发.
举证妨碍制度兼有救济和制裁性质,有助于诉讼中公正价值的实质实现,但由于存在制度定位不清、程序性不强以及一般条款与特殊条款不协调等不足,举证妨碍制度在知识产权侵权诉讼的实践中一直处于低效运行的状态,并未起到应有的救济作用."认识—道德两分理论"厘清了在事实认定规范中认识论和道德判断的界限问题,可以为我国举证妨碍制度的程序构建提供指引.举证妨碍制度是一种证明责任规范,其顺利运行有赖于法律的明确规定.可以通过解释论的视角,以现有条文为依托,构建以诉讼上的协力义务为核心线索的举证妨碍制度运行程序,解决举证妨碍制度在知识产权侵权诉讼中适用率低下的问题.
信息网络技术的发展在带来便利与快捷的同时,也为各种犯罪活动提供了支持.新型的犯罪形式借由信息网络技术的加持由传统的物理空间迁移到了网络空间上,其中许多犯罪行为无法按照传统刑法(共犯)理论进行解释.其经典犯罪模式可以被概括为"漠不关心"的分离射线型和"心照不宣"的链条型两种类型.网络帮助犯罪行为的犯罪主体之间的意思联络及行为共同性极弱,甚至为零,因此很难被评价为共同犯罪.基于此,《刑法修正案(九)》增设了"帮助信息网络犯罪活动罪"(以下简称"帮信罪").网络接入、资金结算等信息网络技术帮助行为,是典型的中性业务行为,天然地具有被犯罪分子利用以从事犯罪行为的风险."帮信罪"中规定的"明知"要件将中性业务行为与犯罪行为区分开来."明知"的范围应当是明确知道,而不包括可能知道与应当知道.推定是标志基础事实与假定事实之间法律关系的证据法范畴,从方法上说它是一种非论证性的推理,没有连续的推论环节.通过推定证明"明知"的方式具有扩大"明知"范围的风险,即无法排除可知与应知的情形,从而造成罪名的扩大适用,增加信息网络服务入罪的风险,阻碍网络科学技术与社会经济的发展.另外,推定的适用还为了满足司法实践的需求.在"帮信罪"中认定"明知"时,应当摒弃推定的适用,转而交由法官依据个案证据进行证据推论.
