1. Human Character and Human Autonomy
  2. The Notion of Autonomy in General

Although the concept of human autonomy plays a prominent role in fields such as substantive criminal law,[1] that concept rarely figures in discussions of the character evidence rule [2] In the course of a renowned discussion of the character evidence rule, however, Justice Benjamin N. Cardozo said, “In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar.”[3] This comment suggests, though it was probably not designed to assert,[4] that the notion of autonomy has something to do with the character evidence rule. But, regardless of whether any American judge, law maker, or legal scholar has ever attempted to use autonomy to justify or explain the character evidence rule, might autonomy do so? This is the question I will discuss in this section. Before I do so, however, I need to make a distinction between two versions of the notion of autonomy and, thus, between two types of arguments based on the notion of autonomy.

Autonomy may be seen either as an ideal or as a fact. Each conception generates a different argument. An argument appealing to the ideal of autonomy has a prescriptive, moral, or normative character; it favors the character evidence rule on the ground that the rule reflects how human beings should work. Such an argument is aspirational. An argument appealing to the fact of autonomy, by contrast, is a “practical”, or “realistic” argument. It defends the character evidence rule on the ground that the rule accurately reflects how human beings in fact work.[5]

The bulk of this part of the paper discusses a “prescriptive” version of an autonomy-based argument for a prohibition against the use of evidence of character to show conduct. The very last section of this part of the paper has a very brief discussion of a “realistic” version of an autonomy-based argument in defense of the character evidence prohibition.

  1. The Character Evidence Rule: An Appropriate Expression of the Ideal

of Human Autonomy?

Roughly two hundred years ago Immanuel Kant argued (at great length) that the principle or ideal of human dignity requires that people be treated as autonomous creatures who are capable of determining their own actions.[6]1 will refer to this theory, from time to time, as the “VoA” theory—the “value of autonomy” theory.

This VoA thesis of an intimate or necessary connection between dignity and autonomy still commands respect in a good many quarters.[7] Let us suppose that this thesis or hypothesis also commands your respect and mine. Hence, let me assume for now that all of us assent to the following two propositions:

  • human dignity is itself an ideal, value, or norm that the law is required to respect (and also, perhaps, “reinforce” and “support”), and
  • to support the ideal of human dignity, law and society must treat human beings as autonomous and self-governing creatures.

Having established (somehow)[8] the value of human autonomy, and having also established (somehow)[9] the importance of having

the law treat human beings as autonomous creatures, one might undertake to demonstrate that the character evidence rule is a necessary legal doctrine or, in any event, a useful or appropriate one. This argument would begin with the claim that the use of character evidence to show conduct is inconsistent with the principle of autonomy because to allow the use of character to show conduct effectively and publicly embraces the proposition that people’s conduct can be caused, not by themselves, but by their character. Hence, the law should outlaw the use of character to show conduct because by doing so the law commits itself to the proposition that character does not cause conduct, a position consistent with the ideal of autonomy.

The “value of autonomy” argument for the character evidence rule that I have just described presupposes that the use of character evidence is incompatible with the morally mandated (but possibly untrue) premise of human autonomy. This presupposition seems to depend on two further presuppositions, which are as follows:

  • the use of character as evidence implies that character causes people to act the way that they do, and
  • people are not autonomous, or self-governing, if their character causes them to act the way that they do.

Now that we have the VoA theory before us, let us consider whether this theory holds water. Let us consider, in particular, three possible rejoinders to the argument that the use of character as evidence contravenes the morally mandated premise or ideal of human autonomy. In so doing, let us see what (if anything) these rejoinders tell us about human character.

Rejoinder No. 1: Relevance and Causality: Relevance Does Not Imply Causation.

The VoA argument against character evidence implicitly but necessarily rests on the proposition that the relevance of character to behavior implies that character causes behavior. Were society to embrace character evidence, the VoA theory posits, society would embrace the notion that human beings are automatons

The VoA theory as I have just described (and refined) it probably raises any number of issues and objections, but at this point I want to limit discussion to just one particular objection, or rejoinder, to the VoA argument in favor of the ban against character evidence. This rejoinder directly attacks the proposition that any supposition of the relevance of character to behavior implies that character causes behavior. It maintains character may be a basis for a valid inference about behavior yet not be a cause of behavior.

This rejoinder questions the connection between relevance and causality. It proposes that it is possible for an event or state of affairs to serve as a sign, indicator, or evidence of another event or state of affairs even if there is no causal connection or connections between the state or event that serves as a sign of another state or event and the state or event whose existence is suggested or shown by the state or event that serves as a sign.

The thesis that relevance does not imply causation may seem pertinent to an assessment of the VoA thesis of a necessary conflict between circumstantial character evidence and the value or norm of human autonomy. For if it is in fact true that one “state of the world” can serve as a sign of another state of the world in the absence of any causal relationship between those two states, there appears to be a logical possibility that “character” can serve as evidence of “behavior” even if character has no causal relationship (either direct or indirect) with behavior. Thus, as applied to the phenomenon of character evidence, the first possible explanation for the inability of the VoA thesis to justify a legal prohibition against the “circumstantial” use of character evidence is that the ability to use character to predict or infer behavior does not necessarily imply that character has a causal connection to the behavior that it predicts or suggests.

I regret to say that the VoA argument for the prohibition against character evidence cannot be disposed of this easily. For if one undertakes a careful analysis of the thesis that something can be relevant to the proof of an event without having caused the event, one quickly reaches the conclusion that the question of whether relevance implies causation is far more complicated than the arguments sketched thus far suggest. One can concede, for example, that an event serving as evidence can postdate the event for which it is evidence and yet insist that there must be a causal link between the later event and the event that it is thought to evidence. One might argue, for example, that the later event serves as evidence of the earlier event if and only if the later event is caused (directly or indirectly) by the earlier event. More generally, one might argue that any two events that have no causal connection can have, in the nature of things, only a coincidental connection and that a purely coincidental connection can never have—in the nature of things—any probative force.

Quite apart from these general considerations, the rejoinder based on the possibility-of-relevance-without-causation seems to have a vicious failing in the present context: it seems to be immaterial to the VoA argument for the character evidence rule. Even if it is possible for other kinds of evidence to be probative of a hypothesis in the absence of a causal connection between the evidence and the hypothesis, character evidence seems relevant and probative precisely because, only because, and only when there is a belief in the existence of some kind of a causal link between character and behavior. We may think, for example, that character evidence is relevant because we think that a certain kind of character trait makes certain kind of behavior more probable. Hence, whatever may be said of other evidence of behavior—that is, even if some evidence may be relevant to behavior without having a causal connection with it—the relevance of character evidence does seem to depend on our judgment or belief that character does have a causal link with behavior.

My analysis here suggests that the relevance-without-causation thesis is not a valid ground for rejecting a normative Vo A rationale for the character evidence rule. But my analysis has suggested something else. The relevance-is-possible-without-causation rejoinder to the Vo A theory might make an observer object that character has a causal connection with behavior. This hypothetical observer might reason along the following lines:

Well, if I am inclined to think that character evidence is relevant, it must follow that I also believe that character influences behavior.

In any event, I believe that a person’s character can influence that person’s behavior and I can readily imagine situations in which I think character evidence is relevant precisely because and only because I believe that.

As I shall shortly show, my hypothetical observer exaggerates a little: it is not true that if one thinks that character and behavior are causally connected, one is compelled also to believe that character causes or influences behavior.[10] Nonetheless, my hypothetical observer does make an important point: it is both possible and probable that character “causes” or influences behavior. This point, which is practically a truism,[11] warrants special emphasis.

Rejoinder No. 2: Direct and Indirect Causation: If There Is a Causal Connection between Evidence and Hypothesis, the Connection between Evidence and Hypothesis (and Between Character Evidence and the Human Conduct in Issue) Can Be Indirect.

Another possible rejoinder to the VoA rationale for the character evidence rule challenges the VoA theory’s hypothesis that a belief in the relevance of character evidence logically implies or entails the belief that character causes or influences conduct. This attempted rebuttal maintains that even if one believes that evidence has probative force only because it points to a cause and effect relationship —if one makes the judgment that “character” is indicative of “behavior”—it does not follow that one must reach the conclusion that “character” causes “behavior.” It is possible that the causal connection between evidence such as “character” and a hypothesis such as “behavior” is indirect. Thus, even if there must be a causal connection between evidence and hypothesis, it is possible that the evidence is causally connected to some other variable, which may be a “hidden” or “omitted variable,” which is in turn connected to the hypothesis or possible fact.

Thus, instead of Scenario 1 in Figure 1,





C = character (tendency to kill)

B = behavior (killing of V, a Black man)

you might have Scenario 2 in Figure 2,FIGURE 2
. H

Where H = hatred or animus toward Blacks

In Scenario 2 the actor’s character and his killing of V are thought to have a common cause, the actor’s hatred of Blacks.

There are possible scenarios in addition to those shown in Figures 1 and 2. For example, you might have the scenario (Scenario 3) depicted in Figure 3:


H = hatred C = character B = behavior


In Scenario 3 hatred of Blacks generates a propensity to kill, which generates the killing of V. In this scenario, however, character remains an immediate cause of the actor’s behavior.

4 in Figure 4.





In this (fantastic) scenario B, the actor’s killing of a Black man generates H, a hatred of Blacks in the breast of the actor, which in turn generates, or causes, C, a propensity to kill.

Scenarios 2 through 4 (in Figures 2 through 4 above) are meant to support the thesis that even if one assumes that there is a causal nexus between character and conduct, it does not follow that character causes behavior. But Scenarios 2 through 4 fail to do the job expected of them. Scenario 3, of course, misses the mark because in that scenario character remains a direct cause of behavior. Scenarios 4 and 2, however, also fail, but for somewhat different reasons. The trouble is that Scenario 4 proves too little while Scenario 2 proves too much.

Consider Scenario 4. This scenario suggests the possibility that character and hatred, instead of being the causes of the act or behavior in question, are the effects of the act. The trouble with this effort to bolster rejoinder number 2 is that Scenario 4 proves too little: a concession that Scenario 4 is possible falls short of showing that matters such as character and hatred cannot be causes rather than effects. Hence, Scenario 4 fails to determine the basic foundation for the VoA argument that law and society must outlaw the use of character evidence. Scenario 4 merely requires a slight modification in the VoA thesis, which must now read: law and

society must ignore human character when it is an antecedent cause, rather than an effect, of human behavior.

Now consider again the chain of reasoning depicted in Scenario 2 in Figure 2, where hatred H is the “immediate” cause of behavior, and where character C, along with behavior B, is one of the effects of the actor’s hatred:



Where B = behavior, H = hatred, and C = character

Scenario 2 does not relieve the actor from the “tyranny” of having his behavior be caused or influenced by his character. But Scenario 2 substitutes the “causal tyranny” of character with another: the causal tyranny of hatred.[12] Scenario 2 reveals that matters in addition to character can cause or influence human conduct. Thus, although Figure 2 depicts a situation in which a human actor’s autonomy is not abridged by the influence or power of character C, Figure 2 does not depict a situation in which the actor is altogether free of causal influences or constraints; the actor in Scenario 2 remains subject to the influence of his own prior hatred H. It is therefore arguable that Scenario 2 proves too much. For if VoA theory is right in assuming that society must treat people as autonomous creatures and that society violates that obligation when it allows the use of evidence of matters that cause people to act the way they do, the situation depicted in Scenario 2 suggests that much evidence of human conduct that is now admissible—matters such as prior emotions, desires, attitudes, wishes, and even physical circumstances—would have to be made inadmissible when such matters are offered to show their influence on human behavior. In sum, Scenario 2 suggests that much evidence of human character that is presently admissible to show human conduct would have to be made inadmissible in order to protect the ideal of human autonomy in American law and in society.

The tendency of Scenario 2 to prove too much, however, does not necessarily prove that Scenario 2 is a defective basis for an attack on VoA theory. A critique that “proves too much” is not necessarily flawed. Such a critique can expose a flaw or weakness in the position being critiqued. In particular, the awkward consequences or implications suggested by Scenario 2 may amount to a reductio ad absurdum of VoA theory: the conclusions suggested by Scenario 2 about the amount and type of evidence that would have to be made inadmissible if VoA theory were taken seriously and applied consistently may demonstrate that VoA theory is absurd.

An appeal to “unacceptable” consequences can make an argument or theory “absurd” in different ways. Do the implications of VoA theory for the admissibility or inadmissibility of evidence of human conduct show that a VoA rationale for the character evidence rule must be rejected because the consequences of a VoA rationale— the loss of a great deal of probative evidence of human conduct—are just too great? Or do those implications of VoA theory for the process of proof in litigation demonstrate that there is a logical defect in VoA theory—that VoA theory is, in some sense, incoherent, self­contradictory, or, literally, nonsense?

The awkward implications of VoA theory for the admissibility of evidence of human conduct do not demonstrate that VoA theory is literally incoherent. But they do raise a serious question about the validity of the assumptions that VoA theory makes about the nature of autonomy. In particular, the awkward conclusion that evidence of matters such as hatred ought to be inadmissible suggests that there is a defect in the idea that human autonomy requires (absolute) freedom from causality. I will address this point next, in my discussion of rejoinder number 3. Before I do that, however, I want to reiterate and emphasize the central moral of this discussion of Rejoinder 2 and Scenario 2:

If the ideal of autonomy—in the sense of freedom from causal influence—is one’s dominant concern, it is very difficult to make a principled distinction between evidence of character, on the one hand, and evidence of many other matters—such as emotions—that can influence human conduct, on the other hand.

The importance of this moral reaches beyond the question of the validity of VoA theory because it may prove to be difficult to distinguish between character and matters such as emotions and desires even if one has an entirely different explanation (one not based on autonomy) for the character evidence rule. I will have more to say about this point in Part III of this paper.

Rejoinder No. 3: Choice and Causality: Causality Is Not Incompatible with Autonomy

The most forceful rejoinder to the treat-people-as-autonomous theory—the VoA rationale for the character evidence rule—is that even if it is granted that matters such as “character” cause, or influence, “behavior,” it does not necessarily follow that any particular instance of human behavior is not self-determined.

In the analysis thus far I have been tacitly assuming that “character” is an inherited bundle of traits or, in any event, a set of unchosen traits, characteristics, and dispositions. If, however, “character” is voluntarily assumed or chosen by the actor, then the cause of “behavior” is a chosen state of affairs, not an inherited one and it may be appropriate to say that the act “caused” by the actor’s character is an act that was chosen by the actor.

If “character,” like “behavior,” may be a consequence of an actor’s free decision, you can have Scenario 5, which is structurally similar to Scenario 2:

Where D = (free) decision

In the situation depicted in Figure 5 a human choice or decision produces or creates a certain behavior, but it also literally creates “character.” In this instance, the actor’s character still serves as evidence of the actor’s behavior, but only because it serves as evidence of a prior decision by the actor. Q.E.D.:   the use of

character to predict or infer behavior does not necessarily entail the conclusion that inherited or unchosen character alone determines, or predetermines, behavior.

There are two questions that one might ask about this attack on the foundations of VoA theory. First, is the attack sound? Second, does the attack suggest the existence of any features of human character that are important for our purpose—the purpose, that is, of rethinking the character evidence rule?

The answer to the first question is, I think, uncertain. For example, the mere fact that an action can be “caused” by a human choice or decision is not a decisive demonstration that human beings have the ability to act autonomously in a world that is subject to causality. There is the complication, for example, that an actor’s choice may itself be the effect of some antecedent event. Perhaps, for example, someone issued a threat T to the actor, saying kill Victim or I will shoot you. Consequently, we have the following situation:

Despite the existence of antecedent causes—the existence, that is, of antecedent matters or events that influence human decisions and choices —it is still possible that human beings have the capacity to act “autonomously.” This refined autonomy differs from the previous, absolute concept of autonomy, but the precise difference may be expressed in different ways. One might argue, for example, as G.W.F. Hegel did, that free choice is not synonymous with unconstrained choice and that the concept of autonomy, or freedom, is—to use modern academic jargon—incoherent in the absence of constraints or limitations. Hegel put it in the following way on one occasion:

My willing is not pure willing but the willing of something. A will which … wills only the abstract universal, wills nothing and is therefore no will at all. The particular volition is a restriction, since the will, in order to be a will, must restrict itself in some way or other. The fact that the will wills something is restriction, negation.[13]

Alternatively, one might argue, as Glenn Shafer has—but in a very different context and for a very different purpose —that many of us are prone to misunderstand the concept of “causality.” Shafer suggests that we think of our pictures of temporal links and influences as experiments that both humans and nature conduct with the world.[14] We make a basic mistake, he suggests, when we transform our pictures of the world into the world itself. Thus, if we have the experience of being free and making free choices, Shafer’s argument implies (although little in his argument suggests that he himself has considered the precise question that I am wrestling with here), there is little or nothing in the bare notion of causality that forces us to think that we lack the ability to make our own choices.

Such issues about the “true” meaning of causality are both very interesting and very difficult. But I will not pursue them further here because I am, frankly, more interested in the second general question that I posed above. I have been playing a little bit of a trick on you. I am not greatly interested in the question of whether the ideal of autonomy can explain or justify a prohibition against the use of character to show conduct. Thinkers such as Kant, of course, took the “problem” of human autonomy very seriously. But I do not believe that legal scholars today—except perhaps scholars of substantive criminal law—worry nearly as much as Kant and some of his contemporaries did about the possibility that human beings are always mere automatons.[15] Autonomy-based arguments are therefore important not primarily because of what they say about the possibility of human autonomy, but mainly because of what such arguments and what attacks on such arguments reveal about human character.

The second general question I posed is whether Rejoinder No. 3 suggests something about human beings that is of importance for the project of rethinking the character evidence rule. The answer is “yes.” The thesis of Rejoinder No. 3 is that character, rather than being the came of behavior, may be the result or effect of an actor’s decisions. The mere statement of this thesis—whether the thesis be true or false—suggests that human behavior may be the result (at least in part) of an internal decision making system, some sort of operating system that is internal to human beings.

Rejoinder No. 3 questions the proposition that the hypothesized existence of a causal connection between character and conduct logically implies that people are unfree: Rejoinder No. 3 asserts that the mere fact of the inferential significance of character for conduct does not mandate the conclusion that human beings live in a prison- house of traits and attributes that they have merely inherited or otherwise acquired, willy-nilly, through no choice of their own. Whether or not this argument succeeds in disproving the thesis that a causal connection between character and conduct implies the unfreedom of human actors, Rejoinder No. 3 does suggest or, at least, evoke a very important proposition. The argument of Rejoinder No. 3 (unlike the argument of Rejoinder No. 2) shows that it is logically permissible to suppose that matters such as “choice” and “decision” can “cause” or influence behavior. This is a logical possibility because, as Figure 5 shows, it is logically permissible to believe that a phenomenon such as “character” serves as evidence of conduct because—or, even, only because —“character” serves as a sign or indicium of human “choice” or “decision.” In other words, (i) it is logically permissible to suppose that “character” is “caused” by matters or events such as “choice” and “decision,” and, (ii) that being so, it is logically possible to take “character” as evidence of some “choice” or “decision.”

The observation that decisions can cause or influence actions is interesting for my purposes, not so much because of what it says about the possibility of human autonomy, but principally because of what it suggests about the likely “causes” or sources of human behavior and conduct. The underlying intuition of Vo A theory is that “character” is an alien thing that can drive people to do things that they do not necessarily choose to do. The underlying intuition of the attack on VoA theory pictured in Figure No. 5 is that a person’s “character” is not, somehow, alien to the person who has such-and- such a character, but that a person’s character is in some sense his own. This way of thinking and talking, to be sure, does not explain in any clear way why character is or is not incompatible with human autonomy. But this way of thinking about character—that is, thinking about character as belonging to a person and being part of a person—does suggest that the right way to begin to understand human character (either in general or the character of particular people) is by keeping in mind that a person’s character is closely connected to that person’s makeup.

The scenario depicted in Figure No. 5 suggests yet another important lesson about the character of character. Viewed from the perspective of that scenario—the perspective, that is, of the supposition that human decisions can cause (or influence) both actions and character—there is no necessary inconsistency between “character” and “autonomy.” The consistency of behavior over time that the word “character” usually signifies can be viewed as the product of a pattern of choices, as a reflection of consistency of decisions. This is an important possibility because it suggests that character (like choice) may be the result of the logic (including thinking and feeling) that drives or moves or inclines people to make the decisions and choices that they make.

Let me describe the implications of Rejoinder No. 3 in a slightly different way. Rejoinder No. 3 serves as a reminder (though not as a demonstration) of an important general proposition about human beings and human behavior:

Human beings have an internal operating system that directs, regulates, or influences their behavior; they have within them a set or collection of rules, principles, and operations that affect how they behave.

One of my principal claims is that character evidence is inferentially interesting because evidence about character may generate knowledge about the “internal logic” or internal “operating system” of a human actor. Hence, for my purposes, the most important upshot of my analysis of the VoA theory is not so much the proposition that the internal logic that drives or directs human actors is a self-chosen logic as it is the (common sense)[16] proposition that there is some sort of internal logic or mechanism that influences human behavior.

  1. The Character Evidence Rule: An Appropriate Expression of the (Alleged) Fact of Human Autonomy?

If one is befuddled by the twists and turns that I have just described in the debates and discussions about the VoA rationale,

one might try to cut through that tangle of arguments and counter­arguments by making the simple and straightforward assertion that the character evidence rule is warranted or required because people in fact start out afresh each day—because people are in fact entirely different, or discontinuous, entities from day to day. This gambit attempts to replace the VoA rationale—the “value of autonomy” rationale—with a FoA rationale—with a “fact of autonomy” rationale.

As bold as it is, the FoA gambit for avoiding the twists and turns of arguments about the VoA rationale does not wash. It cannot be said that, because human beings are “spontaneous” or “autonomous,” the behavior of a human actor on one occasion is never relevant to that same actor’s behavior on another occasion. There is something wrong with any notion of human autonomy or spontaneity that suggests such a patently ludicrous conclusion. Despite the existence of a substantial body of philosophical literature that seems to question the proposition that there exist individual human entities that persist over time, it is simply indubitable that there is a significant degree of continuity in the behavior of most human actors over time. The real question is, instead, what, if anything, the law—and, in particular, the law of evidence—should make of such continuity in the characteristics and behavior of human beings.

[1]       See, Herbert Packer, The Limits of the Criminal Sanction 132 (1968) (“We must put up with the bother of the insanity defense because to exclude it is to deprive the criminal law of its chief paradigm of free will. The criminal sanction … does not rest on an assertion that human conduct is a matter of free choice; that philosophic controversy is irrelevant. In order to serve purposes far more significant than even the prevention of socially undesirable behavior, the criminal sanction operates as if human beings have free choice.”)

[2]       Courts today rarely if ever suggest that the character evidence rule owes its existence to a concern for human autonomy. Moreover, very few legal scholars have ever suggested that human autonomy may be the foundation of the character evidence rule. I believe I am one of a very few observers ever to make such a suggestion. See 1A WlGMORE, supra note 5, § 54.1, at 1151. Talk about autonomy has occasionally surfaced in discussions and debates about the rape victim shield laws. See Ronet Bachman & Raymond Paternoster, A Contemporary Look at the Effects of Rape Law Reform: How Far Have We Really Come?, 84 J. CRIM. L. & CRIMINOLOGY 554,563 (1993); Richard A. Wayman, Note, Lucas Comes to Visit Iowa: Balancing Interests Under Iowa’s Rape-Shield Evidentiary Rule, 77 IOWA L. Rev. 865, 894 n. 243 (1992); Sakthi Murthym, Comment, Rejecting Unreasonable Sexual Expectations: Limits on Using a Rape Victim’s Sexual History to Show the Defendant’s Mistaken Belief in Consent, 79 CAL. L. Rev. 541, 552 (1991); Kit Kinports, Evidence Engineered, 1991 U. III. L. Rev. 413, 425, 438; Harriett Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 MINN. L. REV. 763, 776 (1986); 1A WlGMORE, supra note 5, § 62.1, at 1327. The discussion there, however, focuses on treating women as free to engage in certain types of sexual behavior. It does not address the question of human autonomy in general.

The issue under discussion here—the possible influence of the general notion of human autonomy on the character evidence rule—does seem to be unambiguously similar

to the notion of autonomy that comes into play in some discussions of substantive criminal law. In those discussions it is sometimes said that it is important to punish people for misconduct because it is important to treat people (including wrongdoers) as autonomous beings who are capable of self-determination. See PACKER, supra note 26. This is very much the notion of autonomy whose implications for the character evidence rule I am exploring here.

[3]      People v. Zackowitz, 172 N.E. 466, 468 (N.Y. 1930).

[4]      Cardozo’s rhetoric about starting afresh seems to have little to do with the idea

of autonomy. The thrust of Cardozo’s argument in Zackowitz seems to be that triers of fact are likely to let their emotions get the better of them and that they are likely (therefore?) to overestimate the probative value of character evidence. See id. at 468. After using the fresh start language, Cardozo proceeds to say, in the same paragraph, that the “law is not blind to the peril to the innocent if character is accepted as probative of crime,” id., and he concludes by approving Wigmore’s condemnation of character evidence because of the “tendency of the tribunal… [to] give excessive weight to the vicious record of crime              ” Id.

[5]       In some quarters—particularly in social science, it seems—it is common to segregate theories into normative theories and descriptive theories. This taxonomy does not work well here, principally because the “practical” theory that I describe is not (as yet) a purely “descriptive” theory, but it is also not a purely prescriptive or normative theory. There is something missing in the traditional taxonomy of types of theories. See Peter Tillers & David Schum, A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. REV. 931,1010 – 12 (1991).

[6]      Kant made this argument on numerous occasions. For an excellent summary of Kant’s philosophy see the entry for Immanuel Kant in The CAMBRIDGE DICTIONARY OF Philosophy 398 (Robert Audi ed., 1995).

[7]      The type of VoA theory described in the text appears most frequently in theorizing about substantive criminal law and criminal responsibility. In that context it is often said that it is important for the law to treat human beings as autonomous beings who are capable of determining their own actions. See PACKER, supra note 26.

[8]      The possibility of a logical demonstration of the importance of the value of autonomy is beyond the scope of this paper.

[9]       It should be noted that the alleged importance of having the law “treat” human beings as autonomous creatures does not follow directly from the premise that human autonomy is an important value or an overriding value. It is not immediately apparent that the law’s failure to treat human beings as autonomous creatures abridges the value of human autonomy. For example, one might adopt the Pietistic position that human freedom and worth lie solely in the workings of the inner human heart or soul and that no “external” actions or pains can possibly abridge the worth, dignity, or freedom of the human soul. Alternatively, one might take the position that the content of human law is immaterial because, whatever that content might be, human beings have the capacity to make free choices and decisions within the constraints and limitations (however severe) that the law imposes. In short, one must give some reason for claiming that the presumed value of human autonomy has specific implications for the way that law deals with human beings. Here again, however, the question of the nature of this link lies far beyond the scope of this paper.

[10]    See infra pp. 19-26 (discussing rejoinder No.2).

[11]    I readily grant that the proposition of the possible influence of character on conduct is practically a truism. There are two reasons why I am happy to make this concession. First, the proposition that character may cause or influence behavior is a crucial part of my general argument; it is a fact that I claim must be carefully taken into account in any “reconceptualization” of the character evidence rule. Second, it is no reproach to a theory to say it rests on truisms. Quite often the novel thing about a theory or a theoretical perspective is its elaboration of the implications of “common sense” or “self-evident” truths. Theorists have reason to be pleased if other observers believe that their theories rest on practically unshakable foundations.

[12] Scenario 3 (Figure 3, supra at 22) arguably presents a greater affront to the ideal of autonomy than does Scenario 1 (Figure 1, supra at 20) because Scenario 3 not only assumes that character is the immediate cause of an actor’s behavior, but also that the actor’s character itself is the effect of a prior cause.

[13] G.W.F Hegel, philosophy of Right f6A, at 228 (T.M. Knob trans., 1967).

[14]    See Glenn Shafer, the Art of Causal Conjecture 2 (1996) (“Nature is an idealization that cannot be avoided in an account of causality, but it is dangerously misleading to think of nature as pure object. By thinking of nature as an observer, we keep within our sight the role of actual observers in defining nature as a limiting idealization, and we thereby keep in touch with the subjective aspects of nature and causality.”).

[15]    I think this is partly because our understanding of our cosmos is very different from Kant’s; most of us no longer think of the cosmos as a natural order that is rigidly governed by inexorable “causal” laws. I suspect that it is also partly because our moral sensibility is also different from Kant’s. Today most of us are not tortured—as Kant was—by the possibility that we are morally worthless because we are unable to take any action solely for the sake of principle. Few present-day real-world judges, law-makers, or legal scholars are likely to let their deliberations about the character evidence rule be influenced by the notion that the rule should express the law’s fidelity to the abstract ideal of human autonomy.

41.Even a friendly observer might wonder if I am justified in expending as much intellectual capital as I do on my effort to bolster a proposition that many observers might regard as a truism. I think the answer to that penetrating question is probably “yes” because (if for no other reason!) much evidence scholarship on the character evidence rule seems to ignore this “truism.” A major part of the point of my argument is that much discourse and literature about the law of evidence seem to ignore propositions about character that are regarded as truisms both by people in other disciplines and by “ordinary” people.