Legitimizing Character Evidence

• Publication year: 2019

Legitimizing Character Evidence

Justin Sevier

LEGITIMIZING CHARACTER EVIDENCE

Justin Sevier^*

Abstract

Modern consensus among legal commentators is that character evidence-when used to show that an individual behaved in accordance with her predisposition to commit some act-is an illegitimate form of fact-finding proof. This consensus is codified in the Federal Rules of Evidence, which forbids the use of most "propensity evidence" at trial. Defenders of the ban suggest, without empirical proof, that jurors would overvalue the probative worth of propensity evidence and that the public would balk at the inclusion of such evidence as a matter of legal procedure. This Article suggests that this view is misguided, its assumptions are incorrect, and that policymakers should consider lifting the ban on propensity evidence.

This Article reports the results of three original experiments, which examine the conditions under which the public is willing to legitimize legal verdicts that rely on propensity evidence. The psychological literature suggests that two elements must be satisfied for the public to legitimize an evidentiary rule: (1) the public must perceive the rule as promoting decisional accuracy, such that it increases the likelihood that the fact finder reaches the correct verdict, and (2) the rule must promote "procedural justice," such that people believe that the fact finder has reached its decision according to notions of fair play. Social psychology research on "person perception" suggests that jurors are more competent to evaluate character evidence than legal commentators believe, and research on procedural justice suggests that the inclusion of propensity evidence may increase the popular legitimacy of legal verdicts.

These experiments, which surveyed over 1,200 participants, support the position that propensity evidence is a legitimate form of trial proof. They demonstrate that jurors attend to propensity evidence when it is presented to them, but they afford such evidence significantly less weight than they do most other evidence at trial. Moreover, jurors demonstrate marked competency with propensity evidence: they discriminate between potential accuracy-enhancing

[Page 442]

and accuracy-diminishing features of such evidence, including the frequency of the defendant's behavior, the duration of the acts, and the similarity of those acts to the act of which the defendant is accused. Finally, these studies suggest that propensity evidence increases-not decreases-the public's perceptions of procedural fairness at trial. These findings have substantial implications for evidential policy and for attorneys who make ground-level decisions regarding the use of character evidence.

Introduction.............................................................................................443

I. The Legal Rise (& Fall) of Character Evidence.....................447

A. History and Development......................................................... 447
B. Modern Character Evidence .................................................... 451

II. The Psychological Legitimacy of Character Evidence........456

A. Decisional Accuracy: Impression Formation........................... 458

1. Cause for Concern: Overreliance on Personality Traits ... 459
2. Cause for Optimism: The Interactionist Model.................. 461

B. Procedural Justice: Fair Process............................................. 462

III. Three Experiments........................................................................464

A. Study 1: The Power of Propensity ............................................ 465

1. Participants in Study 1 ....................................................... 466
2. Procedure and Measures in Study 1 ................................... 466
3. Results of Study 1 ............................................................... 470

a. Main Analysis I: Global Attitudes in Study 1 .............. 471
b. Main Analysis II: Specific Judgments in Study 1 ......... 477

4. Discussion of Findings in Study 1 ...................................... 481

B. Study 2: Testing Decisional Accuracy ...................................... 482

1. Participants, Procedures, and Measures in Study 2 ........... 483
2. Results of Study 2 ............................................................... 486

a. Main Analysis of Results in Study 2............................. 486
b. Serial Mediation Analysis of Results in Study 2 .......... 488

3. Discussion .......................................................................... 491

C. Study 3: Propensity & Procedural Justice ............................... 492

1. Participants, Procedures, & Measures in Study 3 ............. 493
2. Results of Study 3 ............................................................... 495

a. Main Analysis of Results in Study 3............................. 496
b. Path Analysis of Results in Study 3.............................. 499

3. Discussion of Results in Study 3 ......................................... 501

IV. Implications and Objections.......................................................502

Conclusion.................................................................................................507

[Page 443]

Introduction

"Propensity (n): An often intense natural inclination or preference."¹

On the eve of the Megalesia festival in 56 B.C., renowned Roman attorney and orator Cicero faced the magistrate Gnaeus Domitius, along with a gathered crowd, at the Quaestio de vi.² Cicero was serving in his capacity as defense attorney for his former student and political adversary, Marcus Caelius Rufus, who had been accused of political violence (known as "vis"), the most serious crime in the Roman Republic.³

The charges against Caelius stemmed from the murder of an Alexandrian ambassador who became ensnared in the efforts of King Ptolemy XII of Egypt to recover his throne after he was deposed.⁴ During that time, Caelius had begun a torrid affair with Clodia Pulchra, a recently widowed woman known in Rome for her gambling, drinking, and penchant for sexual scandals.⁵ When Caelius ended the affair, Clodia and her brother reportedly swore revenge against

[Page 444]

Caelius.⁶ They later accused him of conspiring to kill the Alexandrian ambassador with funds given to him by Clodia, and attempting to poison her to prevent her from sharing with others his alleged misdeeds.⁷

The two-day trial began on April 3rd with several prosecution witnesses attacking Caelius's moral character, but providing little evidence supporting the allegations against him.⁸ On the trial's second day, Cicero began his defense and gave his famed Pro Caelio speech, regarded as one of the best known examples of oratory in Roman history.⁹ In Pro Caelio, Cicero took aim at Clodia and her accusations against Caelius. After stating that the prosecution provided few facts supporting its theory of the death of the Alexandrian ambassador, he attacked Clodia's character, specifically her propensity to commit illicit and uncouth acts:

The whole accusation emanates from a house that is malevolent, disreputable, crime-stained and vicious. Whereas the family alleged to have been involved in this shocking deed is notable for its lofty standards, honourable principles, dutifulness and sense of responsibility; and that is the home from which you just heard a sworn affidavit. The question under dispute, therefore, is easy to settle. You are invited to say whether you do not agree that the parties who confront one another are, on the one side, an unstable, evil-tempered nymphomaniac, who has completely fabricated the charge, and on the other, a man of responsibility, wisdom and self-restraint whose evidence has shown the utmost conscientiousness and accuracy.¹⁰

In addition to its oratorical flourishes, the speech is notable for another reason: it is one of the earliest (and perhaps best known) uses of character evidence-specifically propensity evidence-at trial. In describing Clodia's personality as "crime-stained" and "evil-tempered," Cicero asked the fact finder

[Page 445]

to disbelieve Clodia's allegations of murder and poisoning by virtue of her prevailing personality traits.¹¹ Cicero emerged victorious and Caelius was acquitted of the charges against him.¹²

Character evidence embodies the constellation of an individual's acts that indicate her underlying personality traits.¹³ The evidential use of such underlying traits has a storied, complex role in trials throughout history. Until recently, courts welcomed such evidence; a defendant's bad or illicit acts were viewed as circumstantial evidence of a morally bankrupt character, and it was on that basis that the criminal law would punish the defendant for his or her misdeeds.¹⁴ Indeed, courts routinely admitted testimony from character witnesses-including testimony regarding an individual's propensity to commit a relevant act-into evidence at trial.¹⁵ Thus, proceedings such as the Caelius trial were commonplace. It was only in the late nineteenth century that common law courts, responding to cultural changes inspired by egalitarian norms and Enlightenment thought, began to ban certain types of propensity evidence in determining a defendant's criminal or civil liability.¹⁶

This Article argues, with original empirical data, that the ban on propensity evidence leads to a counterintuitive result: it makes the public less willing to legitimize legal proceedings. This is so because verdicts are perceived to be more accurate if propensity evidence is presented to a fact finder and because the public views the admission of propensity evidence as more procedurally fair than when the propensity evidence is excluded.

[Page 446]

Legal scholars have, from time to time, called for propensity evidence to be admissible under the Federal Rules of Evidence. Columbia Law School Professor Richard Uviller wrote perhaps the best known defense of such evidence many years...