Character, Liberalism, and the Protean Culture of Evidence Law

• Publication year: 2013

SEATTLE UNIVERSITY LAW REVIEWVolume 37, No. 1, Fall 2013

Character, Liberalism, and the Protean Culture of Evidence Law(fn*)

Daniel D. Blinka(fn**)

I. Introduction...............................................................................88

II. Character Proof at Trial: 3 Episodes........................................92

A. Theodore Roosevelt and the Character Witness As Celebrity....................................................................................92

B. The Michelson Case: The Perilous Banality of Character Evidence...................................................................96

C. "Quixotic" Rules and Backdoor Character........................100

III. Character Evidence and Modern Doctrine............................104

A. The Concept of Character Under Modern Rules...............105

B. Character and the Propensity Rule.....................................107

C. Evading the Propensity Rule..............................................110

1. "Other Act" Evidence.....................................................110

2. Sexual Misconduct and Rules 413-415..........................112

3. "Background" of a Witness: Character-"Lite"...............113

4. Demeanor: Character and Appearance ...........................114

IV. Character Proof in History ....................................................116

A. Character, Deference, and the Old-Style Trial (1700-1800) ............................................................................116

1. Character and the Eighteenth-Century Social Order ......116

2. The Old-Style Trial .........................................................119

B. Character, Nineteenth-Century Liberalism, and the Modern Trial ...........................................................................123

1. Character and "Self-Culture" ..........................................123

2. The Modern Trial and Character Evidence .....................129

C. "Good Living Consistently Pursued" into the Twentieth Century ..................................................................132

V. Character and Consternation: The Unsettling of Legal Doctrine .......................................................................................138

A. Character and Contemporary Academic Commentary ......139

B. The "Ordeal" of the Liberal Character Since the 1960s .....144

VI. Character in the Twenty-First Century: Conclusions and New Directions ...........................................................................148

I. INTRODUCTION

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously "grotesque" array of nonsensical rules, whimsical distinctions, and arcane procedures.(fn1) Most troubling is our confusion over the very notion of character itself.

What is character? Some legal authorities leave the word undefined. Others profess not to know what it means, a troubling concession because character is a core concept of evidence law. Still others ponder whether character carries a "moral" element-"honesty" qualifies but being a "good driver" does not. Many commentators, perhaps most, see character as a psychological conceit, a kind of psychic nugget that drives or determines human conduct. They posit that current evidence law is based on an outmoded school of psychology, so-called "trait theory," which must be replaced by cutting-edge psychological or neuroscience research.(fn2)

The legal profession is not alone in its consternation over character. Historians often speak about a "national character" or a "type" of person,(fn3) sometimes serving up hazy distinctions between an individual's "private side" and more visible "public side."(fn4) Character, then, offers useful generalizations about human conduct that are widely accepted, readily understood, and yet left conveniently vague in a host of settings.

Simply stated, character, like race, is a social and cultural construct.(fn5) The assumption that character is or should be grounded in psychology or any science is unwarranted and inaccurate. Character, as we will see, is a function of our popular culture. Character consists of labels and names-sometimes ugly (e.g., "lazy")-that are often expressed in the crude vernacular of everyday life. They are also contingent, differing among groups based on region, class, ethnicity, race, and religion. Their crudeness, fluidity, and amorphousness readily explain why evidence law has had such great difficulty defining character and so little regard for its probative value as proof of past events.

In sum, character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. For example, evidence law's purported ban of character evidence is futile and misguided- character is hardwired into our social relations. Moreover, character's bases are changing in important and yet unexplored ways. Social media, for instance, now equals the backyard fence. The law must account for it.

To provide needed clarity in evidence law, a historical, more contextualized understanding of character is essential. To that end, this article develops three themes.

First, it reviews the doctrinal and policy issues that have famously plagued character evidence, with an eye toward their origins. Even today, doctrine formulated in the early nineteenth century is embraced without an adequate understanding of how this context affects evidence law and trials.

Second, it explores evidence law's historical contingency, which is dependent upon prevailing cultural, economic, and social conditions. Modern "character" reflects middleclass values that first emerged in the nineteenth century and that remain a dominant, though contested, feature of American culture. In sum, the very meaning of "character" has dramatically changed over time despite the law's penchant for treating it as a timeless abstraction. Evidence law's roots in lay culture are underappreciated and frequently ignored, especially by those looking to science for answers.

Third, "character" has changed over time because it is often a cultural, social, and ideological battleground. Rents in the social fabric are often expressed in cultural struggles over values and ideas, as best seen in the recent "Occupy" movement.(fn6) This social and cultural divide, particularly criticisms of middle-class values, contributes to the law's angst over character's meaning and, perhaps, the law's yearning for a scientific solution. Struggles over character reflect broad, deep, and significant concerns about human autonomy and liberal values, which are underplayed in legal scholarship.(fn7) Put differently, character law models a set of liberal values that are stridently contested today.

Part II of this article illustrates the diverse ways character proof arises at trial through three episodes. The first episode involves the use of celebrity character witnesses (e.g., Theodore Roosevelt) to influence a trial's outcome. The second episode draws from Michelson v. United States, a 1947 case famous for Justice Robert Jackson's elucidation of all that is "grotesque" about character evidence. The third episode draws from a recent New York murder trial as recounted by one juror, a prominent historian of science who finds the law's disdain for character "quixotic" and "perverse."

Part III explores how modern law treats character proof. Although rules prohibit most uses of character as propensity evidence, they are riddled with exceptions and frequently evaded. Demeanor and "background" evidence effectively permit character proof to operate sub rosa at trial.

Part IV is the article's core, exploring the changing social and cultural meaning of "character" over time and its related role in trials. More specifically, it contrasts the dramatic shift in the meaning of character in the eighteenth and nineteenth centuries-from one's place in a rigid social hierarchy to the now familiar middle-class values of "self-culture" and "self-improvement" that served a burgeoning market economy, a fluid society, and a democratic polity. Quintessentially liberal and dominating both scientific and popular thought, the new character model celebrated autonomy and free will. A seismic shift also occurred in the trial. The eighteenth-century trial gave prime importance to character. Yet the modern trial, specifically its evidence rules, purportedly banished character largely in the name of controlling jury factfinding and irrespective of character's significance socially and culturally.

Part V discusses contemporary legal doctrine in a historical context. The Federal Rules of Evidence largely retain the common law's "quixotic" approach that "perversely" prohibits character as propensity evidence while otherwise assuming an identity between legal and popular conceptions of character.(fn8) Legal critics, however, are uncertain about character's meaning in the wake of attacks upon middle-class values since the late 1960s and the culture wars of the last two decades. In sum, liberal values long embedded in evidence law are in flux and...