Stone on the "Spurious" Rule Against Propensity Evidence

Want to read a law review article in which the author uses the word, "spurious" 90 times?

Then look no further than Julius Stone's 1938 article, The Rule of Exclusion of Similar Fact Evidence: America (51 Harv. L. Rev. 988). I am not aware of any publicly available version of the article, so I can only include the link to the HeinOnline version.

In the article, Stone criticizes the rule of evidence that states that, in general, evidence of a person's prior acts cannot be introduced to show that the person has a propensity to act in a certain way. This rule is codified at Federal Rule of Evidence 404(b)(1), which states: "Evidence of a crime, wrong, or other 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."

Stone argues that a broad rule excluding prior act evidence is "spurious," and contends that, historically, judges only excluded evidence of prior acts when they were irrelevant. In the absence of a broad rule against prior act evidence, judges had broad discretion to admit prior act evidence. But in the early 1800s, English courts began applying a far broader restriction on prior act evidence. American courts followed suit, and cited the broad rule as though it was the historic approach to this type of evidence.

Stone's article is one of several that I draw upon in an upcoming article on propensity evidence. The article is partially based on the questions I began to explore in this post on exceptions to the propensity evidence ban and due process.

I am still in the process of revising the article, but I hope to post it to SSRN soon. As a preview/spoiler, however, I admit that the current draft of the paper does not use the term "spurious" as liberally as Professor Stone.