Is propensity evidence ever allowed as circumstantial evidence? 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 &quot;a fascination/obsession of/over ancient Egyptian relics&quot; 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?
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 &quot;circumstantial evidence&quot; 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 &quot;the defendant did it,&quot; but rather says &quot;the defendant did it before, so maybe he did it again.&quot; 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 &quot;sexually assaultive behavior&quot; or a &quot;lustful disposition toward children.&quot; 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 &quot;character evidence,&quot; 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 &quot;other acts&quot; 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.
My understanding is that defendants in Britain have to prove statements true by the preponderance of evidence, whereas in the U.S. the standard of evidence is "compelling" (a lower standard). This is not the case. Preponderance of the evidence can still be the burden of proof in the United States (in a civil libel case, although it must be proof beyond a reasonable doubt in a criminal libel case). But, the difference is in what has to be proved. In Britain, it appears to be necessary to show that the statements are true in order to prevail. In the U.S., it is merely necessary to show in a case like this one (because it involves a matter of public concern) that the statements were made with knowledge that they were false, or with reckless disregard to the truth or falsity of the statements made. A factual basis for believing the statements made to be true is a defense if the basis is at all reasonable, and is a complete defense if the factual basis for making the statement is disclosed and that is true or believed to be true by the speaker. It is not necessary for the statements to actually be true under U.S. law in a case such as this one, although actual truth is also a defense, which is not the case in all circumstances in U.K. law, and was not the case under the historical common law. Historically, defamation claims could be brought for statements critical of the monarch, for statements pointing out the natural infirmities of someone for example by mocking a person with low IQ, or for speaking ill of the dead. Furthermore, the U.S. has a variety of doctrines that make it hard to find that a false statement was made in the first place. For example, statements of opinion are not actionable and many of the alleged falsehoods in the McLibel case would be considered to be statements of opinion in U.S. law rather than statements of fact. Similarly, U.S. law does not require that statements be literally true, and instead recognizes that a defendant may have been engaged in using hyperbole, or may have gotten the gist of the accusation right even though strictly speaking the exact statement made is not technically true (e.g. someone might say that a company paid a "penalty" when it actually paid a settlement amount in a lawsuit seeking a penalty or paid an amount representing compensatory damages only rather than a penalty amount). In the same vein, it must be clear from the context of the statement that the person making it intended it to be received as a truthful account and not a mere parody or satire which was intended to be understood as false. For example, I couldn't sue someone who made a knowingly false statement that I assassinated King George V, who died several decades before I was born, or that I was telepathically controlling my uncle because I had a space alien parasite in my spine. Those claims are so absurd that they would be inferred to intended to be fictional on their face. Certain kinds of falsehoods (e.g. lying about one's military record in a a political campaign) are simply not actionable as a matter of law, no matter what, as the harm is not concrete enough. There is not, however, necessarily a defense under U.S. law to defamation liability if the defendant said many things that were true, but something else that would be defamatory in isolation. For example, even if everything else were true, if the defendant had also stated that the CEO of the Plaintiff was convicted of leading a Nazi concentration camp and killed millions of people, which would have been possible given the CEO's age, knowing perfectly well that the person with a similar name to the CEO who did so was someone else who died an untimely death decades ago, that statement might be defamatory and actionable (at least by the CEO personally and probably by the company if it was alleged that he was hired despite the fact that the company was aware of this circumstance).
I am just a foreign patent attorney who is studying common law to pass the California Bar Exam, but I will present my personal view. (I cannot guarantee the validity of my theory) There is an equitable theory called Constructive Trust. If it is established, the victim is entitled to benefit of any increase in value of defendant's (thief) property, meaning in this example victim (plaintiff) can recover $100 million. In order to assert CT, the following must be met: Wrongful appropriation; Here, D stole lottery ticket. Met. D has title; Here, D has title to $100 million. Met. P can trace his property to D's property; P can trace from P's $1 lottery ticket to its possession by D and collection by D of $100 million. Met. Unjust enrichment by D; D was enriched by stealing P's property (the lottery ticket). Met. Thus, it is highly possible that a court will order D to hold the property ($100 million) in constructive trust for P. This means, in plain language, that P will recover $100 million.
There are essentially no such limits on the use of such evidence. The police are free to use evidence from one case in whatever other cases it may be helpful, and criminals have no right to turn over evidence to the police on the condition that it not be used against them. The Exclusionary Rule has no application here, because it only governs evidence that was obtained in violation of the Fourth Amendment. Because the defendant here consented to producing the evidence, the Fourth Amendment does not apply. Nor does the Fifth Amendment prohibit the use of this evidence. The right against self-incrimination only applies to compelled self-incrimination; if a defendant wants to voluntarily confess or turn over inculpatory evidence, he is free to do so.
I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking.
They could be prosecuted in any state where there was evidence that part of the crime was committed. Realistically, either State A or State B could prosecute for conspiracy to murder as an additional charge, because the conspiracy clearly spanned more than one state, even if they can't prove where the crime was committed, although physical evidence (e.g. traces of camp sites, footprints, testimony about landmarks, evidence of poop with human DNA from the victim in it), would usually make it possible to show that some part of the crime was committed in the state. There is probably also a federal crime that could be implicated such as "murder involving flight across a state line" (hypothetical, but I'm sure that there is something similar on the books). I'm not going to address the further hypothetical as it is too bizzare and law is ultimately very context specific. Find a more plausible fact pattern, perhaps with a different crime, and ask a separate question if you want to really address the issue.
The Evidence Would be Admissible. Under the so-called &quot;good faith exception&quot; to the exclusionary rule the evidence would probably be admitted over Bob's objections in both cases mentioned in the question. Recent US court decisions have limited the exclusionary rule when police officers reasonably but mistakenly believe that a valid warrant exists, and find evidence acting under such an apparent warrant. However, if there is good evidence of intentional falsification by the police, the exception will probably not apply. As to the second case, where Bob is home and protests that an error is being made, police are not required to, and often do not, accept much that suspects or subjects of warrants say in their own defense. If anyone could simply claim there was an error and delay a warrant, perhaps giving time to dispose of evidence, many problems would result. However, the &quot;good faith&quot; exception only applies where the police reasonably and honestly believe that the warrant is valid, or that probable cause exists. If Bob says something such as: This warrant is for 1020 Anne street, where Alice Crook lives. But I live at 1050 Albert street. See the house number is 1050 right here. There must be a mistake. then a reasonable officer would probably double check the warrant, and if the officer unreasonably fails to do so, the search might later be suppressed. But this is going to be a very fact-sensitive inquiry, and none of the cases that I know of on the &quot;good faith exception&quot; rule are exactly on point for this situation. I cannot be sure how a court might rule in such a case. Leon and Evans Cases In United States v. Leon 468 U. S. 897, the US Supreme Court created a &quot;good faith exception&quot; to the exclusionary rule. In that case the Court held that when officers make an objectively reasonable, good faith decision to rely on a warrant later held to be invalid, the exclusionary rule does not apply, and evidence found during a search under such a warrant, or in the course of an arrest under such a warren, is admissible. The basic logic is that when the invalid warrant was the result of an honest mistake, suppressing the evidence would have no deterrent effect on future similar mistakes, as no one intended to make them in any case. In Arizona v. Evans 514 U. S. 1 (1995), this rule was extended to officer who rely in good faith on information mistakenly provided by Court employees. The underlying logic is much the same. Herring v. United States In Herring v. United States, 555 U.S. 135 (2009) this exception was further extended to officers who acted in good faith on the mistaken information of other officers. Evidence found in a search incident to an arrest, although there was no valid arrest warrant or other probable cause, was not suppressed. In this case a warrant had been issued but later recalled. however this recall was somehow not properly entered into the database of warrants maintained by a sheriff's office. When a nearby jurisdiction called to ask if there was an outstanding warrant on Herring, they were told that there was one. Herring was arrested, and drugs and an unlawful firearm found. Minutes later the officers were told that the arrest warrant was not valid. Herring was convicted based on the evidence from the search, and the US Supreme court upheld the conviction. The court wrote in Herring: When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation. The very phrase “probable cause” confirms that the Fourth Amendment does not demand all possible precision. And whether the error can be traced to a mistake by a state actor or some other source may bear on the analysis. For purposes of deciding this case, however, we accept the parties’ assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied. The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213, 223 (1983). Indeed, exclusion “has always been our last resort, not our first impulse,” Hudson v. Michigan, 547 U. S. 586, 591 (2006), and our precedents establish important principles that constrain application of the exclusionary rule. ... the exclusionary rule is not an individual right and applies only where it “ ‘result[s] in appreciable deterrence.’ ... When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted “in objectively reasonable reliance” on the subsequently invalidated search warrant. 468 U. S., at 922 (Leon). We (perhaps confusingly) called this objectively reasonable reliance “good faith.” In a companion case, Massachusetts v. Sheppard, 468 U. S. 981 (1984), we held that the exclusionary rule did not apply when a warrant was invalid because a judge forgot to make “clerical corrections” to it. ... in Evans, 514 U. S. 1, we applied this good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding. We held that a mistake made by a judicial employee could not give rise to exclusion for three reasons: The exclusionary rule was crafted to curb police rather than judicial misconduct; court employees were unlikely to try to subvert the Fourth Amendment; and “most important, there [was] no basis for believing that application of the exclusionary rule in [those] circumstances” would have any significant effect in deterring the errors ... the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional ... ... To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. ... In Franks v. Delaware, 438 U. S. 154 (1978), ... we held that police negligence in obtaining a warrant did not even rise to the level of a Fourth Amendment violation, let alone meet the more stringent test for triggering the exclusionary rule. ... We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion. In Leon we held that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” 468 U. S., at 922. The same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant. If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation. See the Wikipedia article on Herring and this Leagal Information Institute article on the case
It is like an affidavit of sort, sworn out without the jurat and not before a notary. The swearing out of a complaint or rebutting evidence in all Federal civil matters (some states allow for the same) must contain an affidavit or an "unsworn declaration" that swears out the facts to be true and accurate, even though not notarized, and is based on fact and not supposition. It is subject to the same penalties of perjury if one lies as if you swear on a bible and testify in court or on a "sworn" affidavit. Affidavits need not be sworn before God, or on a bible. You have a right to just "affirm" that you will tell the truth, the whole truth, and nothing but the truth....and not "so help me God". Many courts don't use a bible at all anymore. 28 U.S.C. 1746 relates to these "Unsworn Declarations Under Penalty Of Perjury" It is not b/c you don't believe in God that you'd use this...you always have the option of swearing out even a declared affidavit or testifying without swearing on a bible if you're an atheist. They just leave out the "before God" part. Affidavits are the norm, however, in Federal Courts that have an expedited docket this is typically used when it could take a while to get a notary and the evidence is due. (In some states lawyers are automatically notaries but in others they aren't). The ability to swear out a complaint or contest a deposition without having to wait on a notary can be the difference between making your deadline or not. It's commonly used when records custodians are called to certify the authenticity of documents produced pursuant to subpoena or other formal request. Under F.R.Civ.P 56 declarations usually are not within the type of evidentiary categories that can be used at the summary judgment phase. If it's a small misstatement you would probably be faced with a fine. If it's a total lie, outright, you'd be looking at jail time (say a records custodian removed evidence and swore out it was the complete business record in a fraud case). 18 U.S. Code § 1621 discusses perjury generally (in federal actions).