Recognizing character: a new perspective on character evidence.

• Author: Anderson, Barrett J.

NOTE CONTENTS INTRODUCTION I. CHARACTER EVIDENCE DEFINED? II. CHARACTER EVIDENCE REASONING A. The Basic Structure of the Federal Rules of Evidence B. The Logical Relevance of Character Evidence C. The Rationale Behind the Character Evidence Scheme D. Empirical Evidence III. THE COMPONENTS OF CHARACTER A. Support from a Textualist Perspective B. Support from a Purposivist Perspective IV. THE FRAMEWORK FOR RECOGNIZING CHARACTER A. The Basic Overview B. The Propensity Prong C. The Morality Prong V. THREE CHARACTER EVIDENCE CASE STUDIES A. Alcoholism as an Example B. Homosexuality as an Example C. Mental Disorders as an Example VI. IMPLICATIONS OF THE FRAMEWORK A. Advantages of the Framework B. Potential Concerns with the Framework CONCLUSION INTRODUCTION

"I am unable to do what all the text-writers and other legal authorities have failed to do. I am unable to outline the contours of the term 'character' in Rule 404...."

Chief Justice Seth D. Montgomery, New Mexico Supreme Court (1)

Character in the law of evidence is an enigma. Advances in psychological research over the past few decades have drastically altered modern conceptions of character and, in the process, have created the potential for confusion as courts determine the admissibility of character evidence. (2) For example, under the law of evidence, is alcoholism a trait of character or of genetics? Should an individual's sexual preference be analyzed as character or something else entirely? Could someone's mental illness be considered part of that person's character? Finding answers to questions like these is critically important because it will often determine whether or not special rules of evidence apply and, therefore, whether or not the proof is admissible. (3) Indeed, classifying proof as character evidence can be the difference between life and death for criminal defendants. (4) Unfortunately, the Federal Rules of Evidence do not define character, (5) and worse still, there is no judicially manageable definition of character for courts to apply when the admissibility of evidence turns on this determination. (6) This Note aims to address this problem by proposing a framework to help courts find an answer to the age-old question: what is this thing called character evidence?

Character proof can have enormous consequences on trial outcomes because of how character is perceived by ordinary people. It seems intuitive that people have something within them called "characters," composed of "character traits," (7) and that these traits influence the way that people behave. For example, if Sally has the character trait of altruism, then an observer might believe it less likely that she committed a theft. Likewise, if Bob has the character trait of violence, then that same observer might think it more likely that he committed an assault. Indeed, as psychological studies have repeatedly demonstrated, popular wisdom holds that character is strongly determinative of future conduct. (8) In other words, society believes that if you know a person's character, then you can most likely predict how that person will act in a future instance. But what exactly is this internal force? Defining character as simply someone's propensity to act in a certain way does not distinguish between what is commonly perceived as character and other propensity-based qualities that courts have recognized are not character, (9) such as habits, (10) mental illnesses and genetic attributes, (11) skills and abilities, (12) or other traits of personality. (13) Without a consistent and reliable way to distinguish between these types of propensity evidence, courts may admit seriously prejudicial proof or exclude important and relevant evidence. (14)

Courts are cautious of character proof for two primary reasons: a jury could (1) believe that character played a greater role in the defendant's actions than it truly did, (15) or (2) convict a defendant for the kind of person he is rather than for what he did. (16) To counter these potential sources of prejudice, over time courts have developed special common law rules to regulate and restrict the use of character proof at trial, (17) many of which have been incorporated into the Federal Rules of Evidence (the Rules). (18) Many scholars refer to these rules as the "character evidence prohibition," (19) but character proof is not, in fact, completely prohibited at trial. (20) It is admissible in several different forms (21) under various circumstances. Instead, it is more useful to think of these combined rules as a "regulatory scheme" (22) that sometimes permits, sometimes restricts, and sometimes completely prohibits character evidence in trials. (23)

Before a court may apply the character evidence regulatory scheme to a proof, it must ask a threshold question: is this actually character evidence? Only after a court determines that proof involves character reasoning can it then ask how it should be used in trial, if at all. (24) The character evidence scheme in the Rules provides the answer to this second inquiry. However, too often courts either ignore the first question or analyze evidence in ways that obscure and conflate these two distinct questions. This Note seeks to help courts answer the first question-the threshold inquiry of determining character-by proposing a framework for courts to apply when confronted with evidence that may implicate strictly regulated character reasoning.

Answering the threshold inquiry is easier said than done because character is an exceedingly difficult concept to define. Legal scholars and courts have long struggled to define character in the law of evidence. Since the time of John Henry Wigmore, observers have lamented that "[t]he prohibition against 'character evidence' is one of the great enigmas in the law of evidence." (25) Even today, legal scholars still have "no general agreement about the precise meaning of the term [character]." (26) Searching outside the law to find a workable definition only yields more confusion. In the realm of philosophy, where character has been a subject of careful study since Aristotle, there are widely diverging opinions about the degree to which character is determinative of a person's past, present, and future actions. (27) Moreover, recent psychological research suggests that character is, in reality, a much weaker predictor of a person's conduct than was previously supposed. The results of these studies have created a debate among psychologists and reinvigorated the debate among philosophers about what constitutes an individual's character. Although these discussions have not offered a reliable definition, they provide the foundation of this Note's effort to crack the seemingly impenetrable law of character evidence.

Courts require a clear, reasoned framework for identifying character evidence when it comes before them to ensure a consistent, predictable, and rational application of the law of evidence. Even now, courts are struggling to decide whether proof of human sexuality, mental characteristics, addictions, psychological disorders, and other traits that appear in both civil actions and criminal prosecutions implicate the character evidence rules or not. The decisions these courts make will not only affect the outcomes of individual cases, but also have a long-lasting impact on the law of character evidence. Unfortunately, as courts have recognized, finding a judicially manageable definition of character is likely impossible. (28) Therefore, this Note does not suggest a new definition of character. But if courts cannot conclusively define character, then they at least need help recognizing character.

To better enable courts to recognize character, this Note proposes a conceptual framework to add some much needed clarity to the law of character evidence. (29) At the core of the current confusion is the fact that "character" in the psychological sense has become divorced from character in the legal, evidentiary sense. Psychologists and other researchers seeking to learn what character truly is have conducted numerous studies, in the process uncovering fascinating insights into human behavior. (30) But this Note reasons that this new "metaphysical" notion of character is causing some courts to lose sight of the reasons for regulating character evidence in the first place, namely the two ever-competing principles of relevance and prejudice. (31) In short, whether or not a proof involves character in the metaphysical sense is unimportant; what actually matters is the proofs logical relevance and prejudicial effect on the jury. Legal scholars largely agree that, in the character evidence context, a proofs logical relevance rests on demonstrating an individual's propensity to undertake certain actions. (32) Less well accepted, however, is the notion that much of a character proofs prejudicial effect is represented by the morality of that conduct in the local community. This Note examines the character evidence scheme and other legal sources and concludes that character cannot be understood without this morality component.

This Note further contends that morality--a set of duties that one owes to oneself and others (33)--is the key to understanding the difference between character evidence and non-character propensity proof, such as habits and mental traits. While the common law courts that created the character proof scheme likely had an intuitive sense that character involved morality, modern scientific conceptions of character define it simply as propensity. But morality is what adds the unacceptable prejudice to an otherwise relevant propensity proof. By disentangling morality from propensity, and providing an evidentiary standard for determining whether each is sufficiently implicated by the proof in question, the proposed framework frees courts from the circular task of deciding whether or not a proof implicates metaphysical character. Rather, the...