By Peter tillers [1]
Introduction: Rethinking the Riddle of the Character Evidence
Rule
The rule barring the use of character to show conduct—the “character evidence rule”—has undergone significant erosion in recent years. The rule also has been subjected to withering criticism. But the character evidence rule—which bars the “circumstantial” use of character—is not yet dead. Moreover, the character evidence rule still has many defenders. (Indeed, in the legal community the rule’s defenders seem to outnumber its critics.)
What is the future of the character evidence rule?
It is becoming increasingly apparent that the standard explanations and justifications for the character evidence rule are inadequate. This suggests that the character evidence rule may become a dodo. But it is premature either to celebrate or mourn the death of the character evidence rule. One prominent observer, John Langbein, takes the position that rules of evidence are particularly hardy weeds that manage to survive even when there is no good reason for their continued existence. [2] But even if one’s view of the law of evidence is not as caustic as Langbein’s, it may be too soon to dance on the grave of the character evidence rule: even if good reasons for the character evidence rule are not apparent, such reasons may exist. Hence, this essay does not attempt either to defend the character evidence rule or to demolish it. It is, instead, an effort to “rethink”[3] the character evidence rule and the possible reasons for its existence.
In Part I of this essay, I explain why several common explanations for the character evidence rule do not work. In Part II, I consider the possibility that circumstantial character evidence is incompatible with the idea or ideal of human autonomy. After rejecting this possibility (but drawing some inspiration from it), I explain in Part III why it is incorrect to say that evidence of human character is generally inadmissible to show human conduct. Part IV of this paper develops my thesis that the conception of character as a bundle of traits is inadequate and that it is far better to think of character as the “animating spirit” or the “internal operating system” of a human organism. In the conclusion to this paper, I make some general observations about the character evidence rule.
In this paper, I take no position on the question of whether the character evidence rule is, on the whole, a good thing or a bad thing.
Instead, I describe some of the questions that need to be addressed before any radical surgery is performed on the character evidence rule. These questions surface if one conceives of character, not as a bundle of traits, but as the internal operating system, or animating spirit, of the human organism. The general theme of my essay is that a true understanding of the character evidence rule is impossible without a true understanding of the character of human character.
- Character Evidence and the Usual Suspects: Irrelevance and
Undue Prejudice
- Character Evidence and the Principle of Relevance
A surprisingly common explanation for the character evidence rule is that the probative value of most character evidence is meager, practically non-existent, or vanishingly small.[4] This is an inadequate explanation or justification for the character evidence rule.
(1) The Question of the “Logical Relevance” of Character Evidence
Although the “meager probative force” theory is an inadequate rationale for the character evidence rule, the explanation for the inadequacy of this rationale cannot be grounded in contemporary legal definitions of “relevance.” Modem definitions of “relevance” such as the one given by Federal Evidence Rule 401 are extremely expansive. They generally provide that evidence is relevant if it has any probative force at ah, regardless of how little. Practically all character evidence, when measured against this enormously liberal standard, is “relevant.”[5] However, though this fact—the almost indubitable fact of the “relevance” of character evidence—may reveal a great deal about definitions of relevance such as those found in Federal Evidence Rule 401, it tells us little or nothing about the merits or demerits of the claim that character evidence is made inadmissible because of its meager probative value. For even if we conclude that character evidence is, “technically speaking,” relevant, we are free to conclude that character evidence generally or always has a meager amount of probative force.[6] The fact of the “relevance” of practically all character evidence speaks principally to the serious limitations of the much-vaunted “modern” theory of “logical relevance.”[7]
(2) The Question of the “Legal Relevance” of Character Evidence
“The fact is that the average person is able to explain, and even predict, the behavior of persons with a facility and success that is remarkable.”[8]
The true thrust of the “meager probative force” rationale is not that character evidence is “logically irrelevant,” but that the probative forces of character evidence is too meager to justify the costs associated with its admission. An earlier generation of scholars and legal professionals might well have said that character evidence is or ought to be inadmissible because it does not meet the standard of “legal relevance”—that it ought to be inadmissible because it does not have more than the “bare minimum” of probative force that is required for admissibility.
There is one obvious but grave difficulty with this version of the “meager probative force” rationale for a prohibition against circumstantial character evidence:
A considerable amount of character evidence has a substantial amount of probative value.*
- Undue Prejudice as a Result of “Sentiment”
The rule authorizing the exclusion of character evidence is sometimes rationalized as a special case of the general principle of “undue prejudice”—the principle that evidence, including relevant evidence, may be excluded as unduly “prejudicial.” One species of the undue prejudice notion focuses on the risk of “misdecision” that can be created by matters such as “sentiment,” “emotion,” and “passion.” This species of the prejudice principle has two distinct variants. The first variant focuses on the risk that jurors’[9] [10] emotions and passions will produce misdecision because of the tendency of emotion and its cousins to overwhelm or disable ordinary reason and judgment. The second variant emphasizes the risk that the personal sentiments of jurors—such as personal dislikes and hatreds—will induce them to refuse to do what the law requires them to do with the evidence that they have been given.
- The Sentiment That Overwhelms, Corrodes, and Disables Reason:
Sentiment as Brute Emotion or Passion
One difficulty with the power-of-brute-emotion justification for the character evidence rule is that a considerable portion of inadmissible character evidence is unlikely to arouse swells of emotion that are strong or durable enough to impair significantly the ability of triers of fact to remember and reason about evidence by the time they retire to the jury room to deliberate; jurors generally have enough time to let their “brute” emotions subside before they must begin their deliberations.
A second difficulty is that much evidence that would be inadmissible character evidence if it were offered solely to show conduct in conformity with character is not barred by the character evidence rule if it is offered for another purpose. For example, evidence of a prior safecracking, though not admissible to show the defendant’s propensity to break into safes and steal money, may be admissible to show that the defendant had the ability to crack the safe that he is now on trial for having cracked and looted. If the tendency of evidence of character to cloud reason with emotion were the true reason for the character evidence rule, evidence revelatory of character would be inadmissible regardless of the purpose for which it is offered.
A third difficulty is that the American character evidence rule ostensibly applies in bench trials as well as injury trials.[11]
The fourth difficulty is that it is rather unclear what a brute emotion is. It is not completely obvious that the emotions ordinarily provoked by courtroom evidence (as opposed to those provoked by a matter such as a physical attack) can reasonably be characterized as “brute emotions,” nor is it beyond doubt that the kinds of emotions that character evidence ordinarily evokes always or generally impede inferential performance. (It is even possible that “inflammatory” character evidence generally improves inferential performance— because such emotion-arousing evidence, by definition, tends to engage the attention of the trier or triers of fact.)
- The Sentiment that Subverts and Nullifies the Authority of Legal Reason and Rules: Sentiment as Personal Preference
The claim that the sentiment or feeling occasioned by character evidence has the capacity to lead a jury into error sometimes amounts to the claim that character evidence may lead jurors to decide to resolve the dispute on the basis of their personal preferences—their “personal sentiments”—instead of on the basis of the authoritative legal rules and principles that they have been told that they are required to follow. The concern in this situation is that character evidence will induce the jurors to concentrate on their own preferences, sentiments, or feelings and that the jurors’ preoccupation with their own preferences may lead the jurors to decide—perhaps quite calmly and without any throbbing passion or emotion—to give effect to their own “personal” preferences rather than to the law’s mandates and requirements. The danger is that jurors will deliberately decide to do what they have been told not do.[12]
The second variant of the sentiment-based rationale involves, in short, the alleged problem of “jury nullification.” If it is at all appropriate to speak of juror passion or sentiment when there is juror misuse of evidence and facts because of juror or jury nullification, the kind of passion or sentiment involved may very well be a “bloodless” or “dispassionate” kind. This is because, by hypothesis, the reason for the jury’s misdecision in such a situation is not rooted in the cloud that emotion throws over reason. The theory here is, in effect, that the jury decides or chooses to make improper use of the evidence before it.
That is the theory.
Does it hold water?
No.
There are two or three principal reasons for saying that the risk of jury nullification does not explain the character evidence rule. First, the character evidence rule is thought to apply in bench trials as well as in jury trials.[13] Second, one might question the assumption that jurors are more prone than judges to engage in “nullification.”[14]
The third alleged infirmity of the nullification rationale is the most cogent: despite the existence of the character evidence rule, much evidence revelatory of character is considered admissible and is often admitted if it is offered to show matters such as “intent,” “opportunity,” and other matters apart from “conduct in conformity with character.” Were it really the case that evidence revelatory of character tends to make a jury ignore the law’s preferences and substitute its own, this risk or tendency would exist when such evidence is admitted even for a “limited” and “non-character” purpose. The nullification theory, therefore, does not explain the character evidence rule.
- Prejudice Due to Misestimation and Exaggeration of the Probative
Value of Character Evidence
Another possible rationale for the character evidence rule—a rationale said to be championed by Wigmore—is that jurors are particularly prone to give character evidence more weight than it deserves.[15]1 will refer to this as the juror-inflation-of-probative-value rationale for the character evidence rule—or the “JIPV” rationale, for short.
The JIPV rationale for the character evidence rule is not necessarily equivalent to the “corrosion-of-inferential-reasoning- capacity-due-to-emotion-and-passion” rationale described in Part I.B.l, supra. While it is true that passion may lead to the misestimation and exaggeration of the probative value of character— because of the destructive effect that passion and emotion can have on the capacity of jurors to reason—the JIPV rationale asserts that jurors, whether or not impassioned, are particularly prone to misestimate and overestimate the probative value of character evidence.
The JIPV thesis faces several difficulties. One difficulty is that while some of the proponents of this thesis invoke the authority of Wigmore to support the proposition that jurors and juries simply are not very good at assessing character evidence and have a special propensity to exaggerate the probative value of character,[16] Wigmore himself rather clearly said that both judges and jurors tend to exaggerate the probative value of character evidence.[17] So Wigmore embraced the J JIP V rationale for the character evidence rule— judge-and-juror-inflation-of-probative-value (of character evidence) —rather than the /IPV rationale—juror-inflation-of-probative- value.
A second and more substantial difficulty with the JIPV theory is that the character evidence rule ostensibly applies in bench trials as well as in jury trials. But perhaps this is not a fatal difficulty because perhaps it is true, as some observers claim, that the character evidence rule, though nominally applicable in trials without a jury, is effectively relaxed—and thereby eviscerated—in bench trials.[18] Although I am not fully convinced that the relaxation of the character evidence rule in bench trials amounts to its evisceration,[19] it is not important that this particular question be resolved here and now. There is a more fundamental difficulty with the JIPV rationale, one that does not depend on the question of the extent of the relaxation of the character evidence rule in bench trials.
The third and most fundamental difficulty with the JIPV rationale is that the assumption that jurors, rather than judges, are particularly prone to overestimate the probative value of character evidence is unwarranted. There is no good reason to believe that a single judge, who is likely to be relatively isolated and separated from ordinary life and ordinary people by virtue of her professional education and professional position (a good many people seem to think that one of the implicit purposes of legal education is to make law students and lawyers less human and humane), is to be better qualified than a jury of twelve, eight, or six people, drawn from a cross-section of the community and having a variety of backgrounds and experiences, to make sound inferences about the probative force of human character.[20]
It is possible that by talking about the abilities of juries and jurors I am riding (and beating) the wrong horse. Perhaps the way to understand the IPV thesis—the “inflation of probative value” thesis—is not to read it as the / IPV thesis—’’/uror-inflation-of- probative-value” thesis—but, as Wigmore suggested, as the J J IPV thesis—’’yudge-and-yuror-inflation-of-probative-value” thesis—or, alternatively, as the EI P V thesis—the thesis that everyone does it. This strikes me as the better and more charitable interpretation of the IPV thesis.
Is it possible that this thesis—that all human beings and all triers of fact, whether judges or jurors, tend to misestimate and exaggerate the probative value of character evidence— justifies the character evidence rule?
I think not.
The thesis that both judges and jurors regularly exaggerate the value of character evidence is reminiscent of the Kahneman-Tversky thesis that ordinary people commit a large variety of inferential blunders and suffer from a wide variety of cognitive illusions.[21]
‘ Perhaps this similarity should sound a note of caution. The Kahneman-Tversky thesis came out in a blaze of glory, and many people were apparently initially persuaded that the general thrust of the Kahneman-Tversky thesis—if not its every detail—was correct. Over time, however, a substantial number of informed observers have questioned the hypothesis that ordinary people tend to be inferential morons.[22]
There is good reason to be extremely suspicious of claims that all people—or practically[23] all people, in any event—are incapable of judging the true value of character evidence. One wonders, for example, how observers such as Wigmore—who are themselves also only human—knew that trial judges and jurors tend to make more out of character evidence than they should. To know when character evidence is being given more weight than it deserves requires that one know the true weight of the evidence. Were observers such as Wigmore “well-positioned” to make judgments that particular trial judges or particular juries in particular cases gave character evidence more weight than it was worth? Is it not likely that the trial judges and juries in any such cases had more detailed knowledge of the character evidence in the case and its larger evidentiary context than did observers such as Wigmore, whose knowledge of such evidence was probably based largely on second-hand and incomplete accounts such as appellate opinions and newspaper articles? Or did they instead simply assume that participants in cases and controversies— participants such as trial judges and jurors—are particularly prone to misjudge the value of character evidence? If that was the implicit assumption, was it correct? Why should non-partisan participants in trials—participants such as trial judges and jurors—have a special proclivity to inflate the probative value of character evidence? Or did observers such as Wigmore instead rely on general assumptions about human nature, in particular on the assumption that people in general tend to misjudge the probative value of character evidence?[24]
I am not convinced that there are satisfactory answers to such questions. But in my mind there is an even more fundamental difficulty with the EIPV thesis—the thesis that (practically) everyone has a tendency to inflate the probative value of character evidence. Its underlying premise—the generally weak probative force of character evidence—is either false or an oversimplification. As I stated in response to the “meager probative force rationale” for the character evidence rule, character evidence is often very probative.
This simple proposition devastates the EIPV thesis—and the JIPV thesis as well. Suppose that character evidence ordinarily has a substantial amount of probative value. Now consider whether it would still make sense to say that triers of fact tend to overestimate the value of probative evidence. The possibility that the proposition is true theoretically still exists: it is logically possible to exaggerate the probative value of extremely probative evidence. But if it is true that triers of fact are generally good at performing inferential tasks, as our system of factual adjudication necessarily assumes, there is little reason to credit the argument that triers of fact are particularly prone to overestimate the value of character evidence. The more plausible and parsimonious thesis is that when triers of fact accord character evidence substantial weight, they do so for good reason.[25]
There is no good reason to treat triers of fact as inferential idiots.[26]
[1] Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University.
This essay is dedicated to Jesse Glendon Tillers and Lily Glendon Tillers. .
My thanks go to Judge Jack Weinstein, Alex Stein, Craig Callen, Mary Ann Glendon, Miguel Mendez, Roger Park, and David Schum for their comments. I am particularly indebted to Miguel Mendez for calling my attention to the affinity between portions of my argument and the arguments of some personality theorists. I am also deeply indebted to Roger Park. He and I have exchanged sporadic e-mail messages during the past several years about the topic of character evidence. Even an inattentive reader will notice that many of the positions I take are similar to the positions that Roger Park has taken both in print and in conversation. His influence on my views about the character evidence rule has been, I believe, profound. I know of no adequate way to acknowledge the extent of that influence except in a note such as this. (I hasten to add that any errors in this paper really are my own. He provided the inspiration. It was my job to supply the perspiration.)
Although I have never met or spoken with Susan Marlene Davies, I would also like to acknowledge my debt to her. In her perceptive article on character evidence, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 CRIM. L. BULL 504 (1991), she uses social science literature, good logic, and just plain common sense to document and substantiate a good many of the kinds of points that I have tried to make in this paper. Although my own arguments do not rest on personality theory or empirical research in the social sciences, her excellent paper has relieved me, I believe, of the obligation to demonstrate that social science research is not incompatible with the positions I have taken in this paper. For that I am immensely grateful.
Finally, I am particularly grateful to Judge Weinstein for his comments, including his valuable reminder that trial judges are not gods and that they do not have divine powers of insight into the human soul.
[2] See John H. Langbein, Torture and the Law of Plea Bargaining, 46 U. CHI. L.
Rev. 3, 19-20 (1978). See also John H. Langbein, The Criminal Trial before the Lawyers, 45 U. Chi. L. Rev. 263,300-06 (1978). ‘
[3] Although I do wish to recast or “reformulate” the problem of the character evidence rule, I do not claim that the ideas in this paper are revolutionary or even particularly original. Most of the ideas that enter our minds—particularly ideas about matters such as law and morals—have been thought many times before. See Mary Ann Glendon, Tradition and Creativity in Culture and Law, in FIRST THINGS 13 (Nov. 1992): John Haugeland, Artificial Intelligence: The Very Idea 12 (1985) (“[Ijnvention is often just a rearrangement (more or less dramatic) of previously available materials.”).
I wish to emphasize that in calling for a reformulation of the character evidence rule riddle, I am not saying or intimating that there has been no fresh or important thinking about the character evidence rule in recent years. To the contrary, there has been a considerable amount. See Craig R. Callen, Proving the Case: Character and Prior Acts: Simpson, Fuhrman, Grice, and Character Evidence, 67 U. COLO. L. REV. Ill (1996). “Fresh thinking”—new theoretical speculation—is not the only thing we need. We also need, for example, careful empirical investigation., which requires imagination as well as diligence. Recent years have seen many valuable empirical studies have been done of various types of evidence. See Peter Miene, Roger C. Park, & Eugene Borgida, Juror Decision Making and the Evaluation of Hearsay Evidence, 76 MINN. L. Rev. 683 (1992) (evaluating juror use of hearsay evidence).
[4] This thesis is theoretically distinct from the argument that jurors or triers of fact tend to overestimate the probative value of character evidence. The alleged tendency of jurors or triers of fact to overvalue character evidence may occur even if it is supposed that character evidence has more than minimal probative value. See infra note 24. Nonetheless, most of the observers who express a concern about the overestimation of character evidence seem to be primarily worried about the exaggeration of the significance of evidence that they think has either very little or no probative value.
[5] There is almost universal agreement about the general proposition that character evidence is “relevant” under liberal modem definitions of relevance. See Harris v. State, 567 A.2d 476, 482-84 (Md. App. 1989) (explaining that even inadmissible evidence may be relevant), rev’d on other grounds, 597 A.2d 956 ( Md. 1991).
[6] The modern definition of relevance is so expansive that it can be difficult to imagine evidence that is truly irrelevant. See 1 WlGMORE ON Evidence § 9 n. 1. at 65758 (Peter Tillers rev. 1983) (“This expansive understanding of what it is that makes evidence ‘relevant’ makes it quite difficult to assert with any confidence that any evidence is irrelevant to anything” and careful analysis of “decisions that purport to exclude evidence for its irrelevancy usually serves to demonstrate that the supposedly irrelevant evidence was in fact excluded (or should have been) for reasons quite apart from irrelevance, such as undue prejudice or undue consumption of time.”). The relevance of practically all evidence principally goes to show that bare, literal “relevance” is not sufficient to make evidence even presumptively admissible. As I said in 1983 about the relationship between rules such as Federal Evidence Rule 401 and Federal Evidence Rule 403, “[Wjhat the Lord Giveth, the Lord Taketh.” 1A Wigmore ON Evidence § 28, at 975 (Peter Tillers rev. 1983). See also Christopher Mueller & Laird Kirkpatrick. Evidence under the Rules: Text, Cases, and Problems 9 (2d ed., 1996) (using practically identical Biblical phraseology to describe the effect of the interaction of Rues 401 and 403). That is to say: Rules 401 and 403, when taken in combination, effectively require that admissible evidence have more than some barely perceptible amount of probative force.
[7] See generally 1A WlGMORE, supra note 5, § 37.1, at 1005-06, § 37.4, at 1030-42. The difficulties with the “logical relevance” standard are discussed in considerable detail at various points in my revision of Wigmore’s treatise. See 1 WlGMORE, supra note 5. § 9 n. 1, at 657-58, 663-664; 1A WlGMORE, supra note 5, § 28 n.l, at 968-969; id. § 37.2. at 1019-1025; id. § 37.4, at 1030-33; id. § 37.7, at 1089-95. (My analysis suggests that logic alone does not explain the emergence of the “logical relevance” notion; other factors— for example, perhaps the desire of legal professionals to give the appearance of preserving juror fact-finding prerogatives while in fact maintaining a system of extensive judicial control over juror fact-finding—were at work.)
[8] PAUL M. Churchland, Eliminative Materialism and the Propositional Attitudes, in A Neurocomputational Perspective: The Nature of Mind and the Structure of Science 1,2 (1989).
[9] It may not matter—it probably does not matter—whether it is true that a “considerable” amount of character evidence has substantial probative value. Perhaps all that matters is that it is sometimes the case that character evidence has substantial probative value. This is arguably all that matters if trial courts have the ability to distinguish character evidence with an insignificant amount of probative value from character evidence with a substantial amount of probative value. If the administrative costs associated with making this distinction are not substantial and if trial judges can be trusted to make this sort of distinction consistently and fairly, the relative proportion of character evidence that does and does not have significant probative value is immaterial. It should be noted, of course, that rules such as Federal Rule of Evidence 403 give trial judges the job of making judgments about the magnitude of the probative value of particular items of evidence (as well as about the magnitude of various kinds of risks and costs that are associated with particular items of evidence). Hence, given Rule 403, one cannot easily defend a categorical rule solely on the ground that it (allegedly) removes the trial judge’s capacity to make “subjective” judgments about the probative value of evidence.
[10] This section of the paper refers only to jurors. It is possible, however, that the undue prejudice principle—or at least some versions that principle—should apply in bench trials as well as in jury trials. See infra pp. 9-11. See also 1 WlGMORE, supra note 5, § 4d.l, at 221-28 (suggesting, inter alia, that exclusion of evidence for reasons such as undue consumption of time is appropriate in bench trials as well as injury trials).
[11] See infra at 789.
[12] This theory of the prejudicial nature of character evidence does not depend on the supposition that character evidence has the capacity to impair the ability of jurors to reason and deliberate about evidence and facts. Tliis theory instead rests on the premise that character evidence inclines jurors to use the wrong reason and the wrong set of preferences; this theory asserts that character evidence will lead jurors to substitute their preferences for the law’s “preferences”—not because jurors who are confronted with character evidence cannot reason in a competent fashion about evidence, but, rather, because jurors who are confronted with character evidence are likely to believe that their personal preferences are better than the law’s preferences and are likely to give effect to their own preference rather than the law’s supposedly mandatory and authoritative preferences.
12 See infra p. 9 and the discussion supra note 9.
[14] It is generally thought that judicial nullification is rare. However, it is not unknown. See Jan Hoffman, Judge Acquits Abortion Protesters on Basis of Religious Beliefs, N.Y. Times, Jan. 19,1997, at 25; A Ruling Too Far, Nat’L L. J., Feb. 3.1997, at
A18; Otto G. Obermaier, Second Circuit Court of Appeals Tries to Nullify Jury Nullification, N.Y.L.J., July 7, 1997, at 7. I am inclined to think (but I cannot prove) that judges do “nullify” the law on a fairly regular basis, but that they do so in subtle and disguised ways—for example, by excluding evidence for reasons that they themselves think are incorrect or by “interpreting” the law in ways that they believe are incorrect.
[15] See Michelson v. United States, 335 U.S. 469, 475-76 (1948).
[16] The Supreme Court itself did this some time ago in Michelson, 335 U.S. at 475. There have been other sinners. See, e.g. Roberson v. State, 218 P.2d 414, 423 (Okla. Crim. App. 1950).
[17] See 1A WIGMORE supra note 5, §58.2, at 1212 (“The natural and inevitable tendency of the tribunal—whether judge or jury—is to give excessive weight to the vicious record of crime thus exhibited and either allow it to bear too strongly on the present charge or to take the proof of it as justifying a condemnation.”). Cf id., §57, at 1185 (“But, as a pure question of policy, the [character evidence] doctrine is and can be supported as one better calculated than the opposite to lead to just verdicts. The deep tendency of human nature to punish not because our victim is guilty this time but because he is a bad man and may as well be condemned now that he is caught is a tendency that cannot fail to operate with any jury, in or out of court.”).
[18] See Miguel Angel Mendez, California’s New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies, 31 U.C.L.A. L. REV. 1003, 1008-09 (1984) (“Objections to the use of character evidence are largely ignored when a case is tried to a judge. Although the general rule is that the jury trial system of evidence governs trials to the court, the rules are often relaxed when the judge sits as the trier of fact. The reason is that the rules of evidence are viewed as the product of the jury system—rules designed principally to protect lay jurors from the prejudicial effects of unreliable evidence.”) (footnotes omitted).
[19] See generally 1 WIGMORE, supra note 5, §4d.l, at 221-28 (saying that although rules of evidence are relaxed in bench trials, it is an exaggeration to say that rules of evidence do not apply in bench trials). See also State v. Forsland, 326 N.W.2d 688 (N.D. 1982) (specifically discussing nonjury character of trial and special problems of enforcing proscriptions on uses of evidence in bench trials, making clear that character evidence rule must be applied in bench trials). See also 1 WIGMORE, supra note 5, at 227 (“rules regarding character evidence are routinely applied in criminal cases”) (citing State v. Jost, 241 A.2d 316,323 (Vt. 1968) (reversing conviction because of improper admission and use of character evidence against a criminal defendant in a nonjury saying, “[c]haracter is never an issue in criminal proceedings unless and until the accused makes it so at trial.”)).
Even if it is true that admissibility decisions in bench trials are effectively insulated from appellate review, it does not necessarily follow that trial judges in bench trials will routinely disregard rules of evidence such as the character evidence rule. If trial judges believe they are obligated to follow the character evidence rule in bench trials, they may do so even if they think they can “get away” with not doing so.
[20] See 1 Wigmore, supra note 5, § 10a n.22, at 688 (“It is sometimes said that the superior ‘experience’ of the trial judge warrants the assumption that the trial judge may better estimate the probative value of evidence. See, e.g., Cleary, McCormick’s
Handbook of the Law of Evidence §185 (2d ed. 1972)___________ But the claim that the
judge has superior experience or insight is usually simply gratuitous and unsupported. How does sitting in a courtroom, as opposed to, for example, working in a factory or raising a family or anything else confer such superior experience and insight? Might one not say with equal force that courtroom ‘experience’ or legal practice or training distorts insights into human motivation and character?”). See also Roger C. Park, Character Evidence Issues in the O.J. Simpson Case—or, Rationales of the Character Evidence Ban, with Illustrations from the Simpson Case, 67 U. COLO. L. Rev. 747, 770 (1996) (“In general, juries should have the authority to decide questions of fact in criminal cases. Group fact-finding by a body relatively untainted by self-interest is likely to be more accurate, under the peculiar conditions of a criminal trial, than fact-finding by a single judge.”) (footnote omitted).
A substantial body of research in social science supports the view that jurors generally do an excellent job of assessing evidence. See Reid Hastie, Steven D. Penrod & Nancy Pennington, Inside the Jury (1983); Michael J. Saks, Small- Group Decision Making and Complex Information Tasks, Report to Fed. Jud. Center. 1981. Although I take comfort in that literature, I do not rely on it. I simply believe that jurors—particularly juries—are better able than judges to assess evidence. Common sense suggests that a group of conscientious and ordinary people is particularly well- qualified to make judgments about the probative force of matters of common experience such as human character. This common sense should be abandoned only in the face of compelling scientific evidence to the contrary.
[21] See JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES (Daniel Kahneman, Paul Slovic & Amos Tversky eds., 1982).
[22] See L. Jonathan Cohen, Can Human Irrationality Be Experimentally Demonstrated?, 4 Behav. and Brain SCI. J. 317 (1981); L.L. Lopes, The Rhetoric of Irrationality, 1 THEORY AND PSYCHOL. 65 (1991); Gerd Gigerenzer, How To Make Cognitive Illusions Disappear: Beyond ‘Heuristics and Biases’, in 2 EUR. Rev. OF SOC. PSYCHOL. 83 (1991); Jonathan J. Koehler, The Base Rate Fallacy Myth, 4 PSYCHOL. 49 (1993); Jonathan J. Koehler, The Base Rate Fallacy Reconsidered: Normative, Descriptive and Methodological Challenges, 19 Behav. and Brain Sci. J. 1 (1996). See also the “peer commentary” on Koehler’s “Base Rate” article, 19 Behav. and Brain Sci. J. at 17-41, most of which agrees with the thrust of Koehler’s critique of the Kahneman and Tversky view of the way that ordinary people use and misuse “base rate” information.
[23] This qualification is necessary if one wishes to avoid the Cretan Liar problem: an observer may want to say that practically all people are morons but he puts himself in an awkward position if admits that he is also a moron.
[24] Apart from these questions concerning the basis of common declarations about the alleged incapacity of judges and jurors to make sound judgments about the probative value of character evidence, one might wonder whether judges and jurors are incapable of self-correction—that is, whether judges and jurors, if told or reminded that there is a danger of exaggerating the force of character evidence, would be unable or unwilling to take adequate steps to prevent themselves from exaggerating the significance of any character evidence that they might be allowed to see.
[25] It is arguable that the case for the exclusion of character evidence because of the tendency of triers of fact to exaggerate the force of such evidence becomes less compelling and more problematic if one believes that character evidence generally has a great deal of probative value, though not as much probative value as judges and jurors tend to think. It is not entirely clear, however, that this particular argument, common in the context of Rule 403 assessments, holds water. A plausible argument can be made that any demonstrable exaggeration of the probative value of any evidence—regardless of the extent of the “real” probative value of such evidence—generates an equal risk that the trier of fact will find that legally-required probability exists when in fact it does not exist or, if the character evidence is used negatively, that a legally-required probability does not exist when in fact it does.
An exception applies, however, when the evidence in question is so strong that, taken by itself (or, in any event, with practically uncontroverted facts), it surpasses the legally- required probability standard (or, if used negatively, the character evidence in question taken practically by itself negates the legally-required probability of some fact in issue).
[26] If it is said that ordinary people are no d—d good at judging evidence and probabilities, the proper rejoinder is always, “Compared to what?” The bare conclusion that ordinary people make errors in reasoning about evidence, facts, and probabilities is both unsurprising and uninteresting.