• The Prohibition Against Circumstantial Character Evidence: Appearance and Reality

The practice of using information about the human psyche as evidence in criminal trials has a long pedigree in America. Long before legal scholars of evidence generally acknowledged the practice, trial lawyers were in the habit of using closing arguments to tell stories about the motivations, beliefs, superstitions, delusions, phobias, fears, hopes, ambitions, political beliefs, aspirations, religious convictions, pretensions, vanity, self-loathing, resentments, hatreds, affections, infatuations, moods, depressions, grief, sorrows, bereavement, and other attitudes, thoughts, and feelings of the people whose conduct may have played a part in shaping the events and actions in issue at trial. In short, American trial lawyers have been exploring and discussing human character in their closing arguments for many years.[1]

Whatever the character evidence rule may mean today, it does not mean that it is impermissible to use evidence to paint a picture of a person’s psyche, his beliefs, his thinking, his aspirations, and the like in order to show that the person did or did not act in a particular way on a particular occasion. There is no meaningful sense (except in a “technical” and arid legal sense) in which it can be said that the law prohibits the use of evidence of a person’s “character” to show conduct. A person’s way of thinking, his aspirations, and similar matters are part of a person’s “character.” Vast amounts of evidence about human character are routinely admitted under existing law— without the benefit of any “exception” to the character evidence rule. It is true that the existing character evidence rule is not wholly a paper tiger: the rule does bar the admission of some character evidence. But inadmissible character evidence is a small island in a vast sea of admissible character evidence.

Dissection of the human psyche in the courtroom is not confined to the closing argument. It also takes place during the process of proof—in particular, in and through the submission of evidence that “technically speaking” does not contravene the character evidence rule. For example, without resorting to any exceptions to the character evidence rule, courts have allowed parties to try to show the doing or non-doing of a specific act by showing a person’s

  • evidence of an intent to deceive[2]
  • greed[3]
  • jealousy and greed[4]

° obsession with sex45 [5] ° interest in explosives[6]

° desire to take revenge on a “snitch” (as well as evidence suggesting that the defendant “was not just blowing off steam,” and evidence for the purpose of “[filling] in the picture of [the defendant] as a man who was not well disposed to those who snitched on him, who threatened others verbally and physically, and who carried out his threats”),[7] ° antipathy toward Roman Catholic priests[8] ° motivations and beliefs of gang members, including their loyalty to a gang and its hierarchy and their willingness to use violence to defend their gang.[9]

In one sensational case, prosecutors argued against severance of fraud and murder charges for trial in the following way:

Desperate and deeply in debt, Craig Rabinowitz had a choice: Confess his deceitful double life to friends and family—or kill his wife to collect on a $2 million life insurance policy.

Telling all would mean disgrace and a life of shambles. Killing Stefanie Rabinowitz meant no more debt and the chance to fulfill a fantasy—with Summer, the topless dancer of his dreams.

When it came time to be a man, prosecutors say, Craig Rabinowitz became a murderer.

“Rabinowitz chose murder and deceit over coming clean to those around him,” writes Montgomery County Prosecutor Bruce L. Castor Jr. in a brief filed Monday in Norristown, Pa.

“He simply could not bear the thought of being found out.” …

Castor argues that Rabinowitz’s fraud case helps establish the motive, premeditation and malice of the murder.[10] In a number of cases, courts have sanctioned the use of evidence to show a person’s mental or psychic world even though the evidence harbors information about the defendants’ racial, political, or religious beliefs.[11] Examples of such admissible evidence about people’s mental and emotional worlds—offered to show human behavior—could be easily multiplied.

The principal doctrinal “handle” for the admissibility of evidence of people’s psyches—their mental and emotional states or “worlds”—is the principle that the use of “motive” to show conduct does not contravene the character evidence rule because—according to the standard learning—motive is not character.[12] Sometimes evidence about the human psyche is admitted under the analogous principle that the use of matters such as “design” and “plan” and “intent” to show conduct does not contravene the character evidence rule—because matters such as “design” and intent are not “character.”[13] But, whether or not matters such as “greed,” “jealousy,” and “hatred” technically—legally speaking—amount to “character” or “disposition,” evidence of such matters does create— and is intended to create—a picture of the mental and emotional world, or makeup, of a person.

Recognition of the widespread admissibility of character evidence under existing law may not make the riddle of the character evidence rule more tractable. But an awareness of the widespread admissibility of character evidence does change the thrust of the riddle. The issue is not whether character evidence should be made admissible. Much character evidence is already admissible. The issue, in general, is whether the current “straddle” between admissible and inadmissible character evidence is the right one. This requires an examination of whether the law has correctly defined character.

  1. Character as a Bundle of Traits versus Character as the Animating Spirit or Operating System of the Human Organism

Law is—at least in part—a practical discipline and also—at least in part—an expression of (relatively) contemporary cultural and social beliefs and prejudices. It is therefore not surprising that the law often falls prey to popular but shallow conceptions of man/woman and his/her relationship to the cosmos. The conception of character that law makers, courts, and legal commentators have seemingly embraced in their discussions of the character evidence rule is a good example of the influence of intellectual fads and fashions on the law.

American legal discourse about the character evidence rule— judicial opinions, commentaries of legal scholars, and debates and discussions of lawmakers and codifiers—uniformly tends to portray “character” as little more than a fortuitous aggregation—a slapdash collage—of traits and dispositions. For example, speaking of the difference between character and methods of proving character, Wigmore—the dean of all evidence scholars, said, “character … is to be considered … as the actual moral or physical disposition or sum of traits.”[14] In the same vein, Wigmore equated “character or disposition” with “a fixed trait or the sum of traits.”[15] Many other courts and legal scholars have spoken in a similar fashion about “character.”[16]

Wigmore clearly deserves our respect. He was a man of monumental intellectual and scholarly accomplishments. But his way of talking about human character reflects a shallow and inadequate conception of human character.

The notion that character is an accidental aggregation of attributes and propensities is nonsense. Human character is not merely a fortuitous collection of attributes and traits.

What are the historical origins of the notion that character consists of an adventitious aggregation or fortuitous bundle of “traits”? How did such a transparently shallow conception of human character manage to achieve a dominant position in American legal discourse about the character evidence rule? Although other scholars have discussed the origins and the history of character evidence rule,58 I cannot offer an authoritative answer to these questions.

reputation in regard to the elements of character involved in the commission of the crime charged against him, for the purpose of establishing the improbability of his having done the wrong imputed to him. A man of good character is unlikely to be guilty of a crime involving moral turpitude, and reputation is the index of character. This rule has little or no application to penal acts which have no moral quality, but are merely mala prohibita. That one is of good reputation as an honest, peaceable citizen has little tendency to show that he has not violated a statute or ordinance forbidding him to catch trout out of season, or to drive certain vehicles faster than a walk, or requiring him to keep the sidewalks abutting on his premises free from snow and ice.”).

The conception of character as a collection of traits and dispositions has been popular in psychology as well as law. See Mendez, supra note 17, at 1051; Miguel A. Mendez, The Law of Evidence and the Search for a Stable Personality, 1996 EMORY LJ. 221, 226-227. See also Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 Crim. L. Bull. 504 (1991); David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. Rev. 1, 26-29 (1987) (hereinafter Leonard, Rationality and Catharsis)’, David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 FORDHAM URB. LJ. 305, 315-16 (1995) (hereinafter Leonard, Political Process). It is both interesting and reassuring to note that traditional “trait theory” in psychology—the analogue in psychology to the conception of character that I criticize here—has gone out of fashion in psychology, largely because empirical studies apparently failed to confirm the hypothesis that discrete traits predict behavior. See Mendez, supra, at 227-28. Moreover, some newer personality theories—theories that move away from traditional “trait theory”—are apparently not dissimilar to the kind of conception of character for which I argue in this paper. See generally id. at 226-36 (describing the personality theory of Walter Mischel and Yuichi Shoda and discussing the implications of the theory for the character evidence rule).

  1. David Leonard seems to trace the origin of the notion of character as a collection of traits to psychological literature in the early part of the twentieth century, particularly to Gordon Allport’s influential work. See Leonard, Rationality and Catharsis, supra note 57, at 26. But I think it is fair to say that notions analogous to the notion of “traits” were “in the air” before Allport came on the scene. See supra note For example, viewed from the vantage of 20th century “trait theory,” Book II of David Hume’s A Treatise of Human Nature consists principally of discussions of various character traits and dispositions (ranging from “pride and humility,” “love of fame,” “love and hatred,” “love of relations,” to “passions” such as “esteem for the rich and powerful” and “malice and envy”). See John O. McGinnis, Law, Human Behavior and Evolution, 8 J. CONTEMP. LEGAL Issues 211, 211 n.l (1997) (“David Hume outlined the way that various human propensities—’passions’ in his words—were responsible for social behavior and social structure.”). Even in the legal arena discussions of conceptions of character in terms of “traits” and “dispositions” appeared long before Allport’s theory appeared. Allport was bom in 1897. The first edition of Wigmore’s treatise, which was published in 1904, talks about “traits” and “dispositions.” See, e.g., John Henry Wigmore, 1 A TREATISE ON THE System of Evidence in Trials at Common Law § 52, at 119-121 (1904) (the heading of this section is “‘Character’ in Two Senses: Disposition, and Reputation of it”); id. § 55, at 122 (Wigmore uses the phrase “character or disposition—i.e. a fixed trait or the sum of traits”). There was talk about “traits of character” before the Supreme Court of the United States as early as the 1860s. In Thompson v. Bowie, 71 U.S. (4 Wall.) 463 (1867), the attorneys for one of the parties argued,

It has been often decided by the courts in civil as well as criminal cases, that wherever a particular trait of character is involved, or is illustrative of the matter disputed, there the character of the party in that particular trait may be given in evidence. Thus, honesty in cases of felony, peaceable disposition, or quarrelsomeness when drunk, in those of riot, &c., chastity in those of seduction and criminal conversation, &c., &c. By the admission of such testimony, the courts recognize the principle contended for, that a man known to act usually in a certain manner, under certain circumstances, will be presumed to act in the same manner when shown to be subjected to the same circumstances.

Id. at 467 (footnotes omitted).

There are other references in cases before 1900 to the use of “traits of character” as evidence. See, e.g., United States v. Kenney, 90 F. 257,263 (Del. Cir. Ct. 1898) (charge to jury: “It does not necessarily follow from the fact that a man has a good reputation for honesty and integrity that he actually possesses those traits of character. The mere possession of such a reputation does not render the person possessioning it incapable of committing a crime involving dishonesty and a want of integrity.”); Mercer v. State, 40 Fla. 216, 233-234, 24 So. 154, 159 (1898) (“The general well settled rule of law is, that when the character of a witness is gone into the only proper object of inquiry is as to his reputation for truth and veracity. Neither his general character, nor particular phases or traits of character can be gone into, but the inquiry must be confined to his reputation or character for truth and veracity.”); Tedens v. Schumers, 112 111. 263, 267 (1884) (while rejecting use of specific instances of honest dealing to bolster veracity of witness, court uses phrase “traits of character”); Commonwealth v. Nagle, 157 Mass. 554, 554-555, 32 N.E. 861 (1893).

Professor Leonard notes that more recent psychological research and theorizing on personality has shifted away from Allport’s “trait theory.” See Leonard, Rationality and Catharsis, supra note 57; see also Mendez, supra note 57. But see Davies, supra note 57 at 515-17 (arguing that trait theory is not quite as passe as Leonard, Mischel, and Mendez suggest). This shift in personality theory seems compatible with the kind of conception of human character that I am trying to describe here. The two types of theories—the new type of personality theory and my theory of human character, while similar in certain respects, are not the same, and I do not claim that the new type of personality theory that Professors Davies, Leonard, and Mendez describe offers any direct support for my account of human character. Needless to say, however, I would be encouraged if scholars who are better versed in personality theory than I am were to conclude that a sound personality theory offers some support for the thesis I am advancing in this paper. By the same token, I am unwilling to assume that the validity of my theory depends on the validity of the new style of personality theorizing that Leonard and Mendez describe; I

Nonetheless, I think I am justified in saying that the notion of character as a bundle of traits has the feel and the smell of nineteenth century British empiricism.[17] [18] [19] The notion that human character consists of a bundle of traits and dispositions reeks, in particular, of Dave Hume’s philosophy.

From a Humean69 perspective on (wo)man and the cosmos—that is, from a standpoint that is nominalist as well as empiricist—human knowledge consists of perceptions[20] or—if one is not too starkly nominalist—it consists of human experiences of sensory events. The acquisition of knowledge, therefore, involves discerning continuities and patterns in perceptions or in human experience of sensory events. A nominalist believes we know only what lies at the surface of our experience, not what lies underneath them, behind them, or outside of them. Patterns in perceptions and sensory events are therefore, as far as we know, “accidental” or “fortuitous.” We cannot say, for example, that because events of type A characteristically or typically seem to precede events of type B, that instances of A cause instances of B. We can only say that we have had perceptions or sensory experiences of instances of B following our perceptions or sensory experiences of instances of A. This is, roughly speaking, the Humean view of the cosmos and of man’s knowledge of the cosmos.[21]

From a Humean point of view, the limitations on human knowledge of the cosmos also apply to human knowledge of the self. (Human selves are part of the cosmos.) Hence, in observing our selves (including the selves of other persons) all that we can say (if we can say anything at all) about human selves is that in our selves (so to speak) we have observed certain patterns or sequences of sensory events (or, more precisely stated, certain sequences of perceptions, sensory experiences, or sensory states).[22] Hence, we are not justified in saying, for example, that “anger” causes “hitting” merely because we have seen, in the past, in our selves (or in some particular self) that “hitting” has always or usually followed “anger.” The best that we can say—and, really, all that we can say—is that we believe, based on our past observations, that there are certain patterns or tendencies in our selves—in the (states of the) selves that we have observed.[23] This nominalist and empiricist way of thinking about the self is very reminiscent of the way that literature in the law of evidence describes human character—as a set of dispositions or traits that people just happen to have.

A Humean account of the self is no more persuasive than is a Humean account of the cosmos. Like the Humean account of the cosmos, the Humean account of the self provides no adequate explanation of our right or ability, on the basis of our past observations and perceptions, to make judgments or predictions about the probable state of some event or condition: in a Humean world we cannot look behind our experiences to make a reasoned or considered judgment about the probability that a past pattern of events or behavior will recur. This cognitive deficiency must apply to human knowledge of the self as well as to human knowledge of the cosmos. In a Humean world it is not possible to make judgments about the probable causes of or reasons for the actions of a self; in a Humean world we can only say that a self has a seeming tendency or disposition to act in a certain way. Though Hume may have believed the contrary—Hume is, after all, regarded by many as the paterfamilias of modern statistical theory, a Humean perspective offers no basis for making any judgments about the probable states of unobserved or unknown conditions, whether those unknown conditions are conditions in the cosmos or whether they are conditions of human selves. Consequently, Hume’s way of thinking about the world, about (wo)man’s knowledge of the world, and about (wo)man himself (herself) is not coherent.[24]

The incoherence of Hume’s philosophical perspective was apparent to some observer’s in Hume’s own era. Hume’s best known nearly contemporary challenger was Immanuel Kant. Kant, with Hume in mind, made the argument long ago that the notion of an entity that we call a “person” is inexplicable unless there is something more to a person than just the sense data and perceptions that, so to speak, flow into or through a person.[25] I cannot pursue the details of some particular locus in space and time. This view creates any number of difficulties and puzzles. For example:

  • Is the existence a person to be equated with the human body?
  • Does a person cease to exist when a set of events no longer congregates at a particular space-time locus?
  • But if the answer to question (ii) is “yes,” how can the answer to question (i) also be “yes”?
  • Does a person cease to exist when he or she goes to sleep?
  • Does a person exist after his death—providing and as long as “his” body still exists?

And so on.

On a Humean view, the thoughts and notions and principles that seem to stream through the heads and hearts of human beings are nothing more than and nothing other than the sensations that happen to be associated with each other at a particular point in space and time. This Humean way of thinking about human beings is not satisfactory. His way of thinking cannot explain the existence, the workings, or the character of human beings.

It is true that some philosophers still puzzle over the question of what it is that makes it possible and legitimate to say that some set of space-time events or states constitutes.a “person”; some philosophers still puzzle over the question of what it is that makes it permissible and legitimate to say that the a person persists as a person (the same person) over time; and some philosophers still wrestle with the question of why it is permissible and legitimate to deny that a “new person” comes into existence with each passing moment of time. See Robert Nozick, Philosophical Explanations, 27-114 (1981). However, most of the philosophers who ruminate about such questions probably do not challenge the presupposition that people do “exist” and “cohere” over time. They seek primarily to explain that presupposition, which they generally seem to take as “true.” Hume himself said that “the same person may vary his character and disposition, as well as his impressions and ideas, without losing his identity” and that it is memory alone—memory of the “succession of perceptions”—that is “chiefly … the source of personal identity.” Hume, supra note 61, Book I, Part 4. After saying this, Hume seems to suggest that “identity” is nothing more than a pleasant fiction that owes its existence to the desire of the human mind for simplicity: “What I have said concerning the first origin and uncertainty of our notion of identity, as applied to the human mind, may be extended with little or no variation to that of simplicity. An object, whose different coexistent parts are bound together by a close relation, operates upon the imagination after much the same manner as one perfectly simple and indivisible, and requires not a much greater stretch of thought in order to its conception. From this similarity of operation we attribute a simplicity to it, and feign a principle of union as the support of this simplicity, and the centre of all the different parts and qualities of the object.” Id.

  1. Kant’s best-known response to Hume’s skeptical challenge had to do with the possibility of causality in a world of sense-based phenomena. But Kant’s rejoinder to Hume was not directed solely at the problem of the possibility of science and scientific reasoning; his objective was not solely to rehabilitate science and scientific explanations. Kant’s counterattack was equally directed at Hume’s notion that human beings—and

Kant’s argument here. Suffice it to say that Kant saw human beings as constructive, creative, or constitutive entities who impose an order on the world that they experience. In Kant’s schema human beings in an important sense consist of the principles by which and through which they organize and constitute their experiences and perceptions.

This general idea—the idea that the very existence and identity of a “person” implies that human beings are entities who are governed by and who constitute certain ordering principles; the idea that it is the existence of such a set of internal principles governing human beings that makes it possible to say or think that a person exists—this general idea is a very old one. The idea is—at the very least—implicit in Plato’s Republic. The same general idea is explicit in Aristotle’s elaboration of his conception of the human animal and its psyche.

Aristotle discussed the nature of the human psyche most fully in De Animal Although De Anima may be best known for Aristotle’s insistence that the “soul”* [26] [27]—the human psyche—cannot exist apart from the body, the most important part of Aristotle’s argument for our purposes is his claim that human beings have “organized” bodies and that human bodies (and other bodies) are “naturally organized.”[28] A naturally-organized body is a body that has the ability to organize itself.[29] The thesis that human beings (and other natural creatures) are self-organizing and self-regulating organisms was one of Aristotle’s greatest contributions to Western thought and civilization. Aristotle’s notion of “organism” has been enormously influential.[30] Furthermore, despite its antiquity, Aristotle’s view of the nature of the “animating principle”[31] of a natural organism remains important today.

Aristotle’s notion of self-organizing organisms has a close affinity with contemporary cutting-edge research and theorizing about matters such as human intelligence.[32] The notion that human creatures have an internal system of rules, principles, procedures, or operations that regulates, directs, or organizes their behavior and activity now has practically the status of a truism in a wide variety of disciplines.[33] It is generally thought that the task of research in fields such as cognitive science and neuroscience is not to determine whether or not such an internal operating system exists—whether some such set of self-organizing or self-animating rules, principles, or operations does or does not exist—but, rather, to determine the characteristics and attributes of the principles or operating systems by which animate organisms such as human beings regulate, control, and influence their activity.[34]

The idea that organisms “exist” and that they have the capacity to regulate or direct their behavior has little or nothing to do with the

Science and Human Behavior 283-294 (1953). Skinner asserts that “a self is simply a device for representing a functionally unified system of responses.” Id. at 285. Skinner seemed to deny even the existence of “ideas.” See id. at 252-254. Skinner referred to thinking as “the behavior of making a decision.” Id. at 242.

Some of the logical positivists may have shared some of Skinner’s views—though this is far from clear. For example, Rudolf Carnap, the “founder” of the school of thought sometimes called “logical behaviorism,” occasionally seemed to deny the reality or existence of psychic or mental states. See generally Rudolf Carnap, Der LOGISCHE Aufbau der Welt (1928). See also Rudolf Carnap, The Development of My Thinking, in THE PHILOSOPHY OF RUDOLF Carnap 3, 16-19 (Paul Schlipp ed., 1963) (volume IX of The Library of Living Philosophers series). See also RUDOLF CARNAP, The Logical Structure of the World & Pseudoproblems in Philosophy 323, 339 (Rolf A. George trans., 1967); Rudolf Carnap, Psychology in Physical Language, in Logical Positivism 165 (A.J. Ayer, ed., 1959). But I think it is important to add that it is easy to misinterpret the logical positivists: I think their theories are often caricatured. My own recent re-reading of Carnap and some other logical positivists makes me think that it is a fundamental error to suppose that Carnap or any of the other logical positivists of his generation ever said or thought that “non-observables” are “illusions.” What they generally did insist on was that theories and theoretical statements be empirically testable, which is not the same thing as saying that unobservable events do not “exist” or that statements about unobservable matters are “false” or “useless.” Carnap did not believe that all “unobservable” nomological or law-like statements were useless illusions. In any event, Carnap himself denied that he ever intended to deny the reality of things such as mental states or law-like statements. See Rudolf Carnap, Intellectual Autobiography, in The PHILOSOPHY OF RUDOLF CARNAP 3, 18-19 (Paul Schlipp ed., 1963) (volume IX of The Library of Living Philosophers series).

There are some important theorists who even now seem to be carrying on a Skinner­like campaign against the “reification” of supposedly unreal mental states or entities. See Paul M. Churchland, The Engine of Reason, the Seat of the Soul: A Philosophical Journey into the Brain 187-226 (1995). But the location of the battlefield seems to have shifted. For example, despite his persistent efforts to deny the reality of “mental states,” Churchland emphasizes that the human animal is a self­organizing entity. Moreover, “behaviorist” and “physicalist” theories such as those of B.F. Skinner now strike many informed observers as either dogmatic or naive. The change in attitude is perhaps best exemplified by Hilary Putnam. Putnam is a prominent contemporary theorist who openly acknowledges the shift in his own thinking about the question of the reality or unreality of matters such as mental states. See Hilary Putnam, Words and Life, supra note 73, at 428 (James Conant ed., 1994) (“A doctrine to which most philosophers of science subscribe (and to which I subscribed for many years) is the doctrine that the laws of such ‘higher-level’ sciences as psychology and sociology are reducible to the laws of lower-level sciences—biology, chemistry—ultimately to the laws of elementary particle physics. Acceptance of this doctrine is generally identified with belief in ‘The Unity of Science’ (with capitals), and rejection of it with belief in vitalism, or psychism, or, anyway, something bad. In this paper I want to argue that this doctrine is wrong.”) The shift in intellectual perspectives has been most striking in the field of psychology: cognitive psychology is now considered to be at the cutting edge and

behaviorism is a pale shadow of its former self. Much of the work done in the field of cognitive science would be altogether incoherent and insensible if it were true that “logical operations” do not really “exist” or do not “operate” somewhere or somehow within the human organism.

notion of a disembodied soul, an entity that is viewed as being somehow separate from “matter,” “material,” or something of the sort. Aristotle thought of “soul” or “psyche” as a kind of quality or attribute of the things that we call organisms. The Aristotelian view that the human psyche consists of a kind of indwelling logic or reason may have seemed “quaint” for a time. But if that was ever the case, it is no longer so. Today—in the day and age of the computer— theorists routinely assert or assume that it is not possible to describe the human organism without describing its internal structure— including—or especially including—the logic of its internal parts and workings and operations.[35]

Today it is common to hear it said that it is impossible to understand the workings of the b

rain simply by grasping the physical material out of which the brain is made; one must instead understand the functional architecture of the brain—how the arrangement and relationship of the various material parts of the brain serve to make or allow the brain to perform certain operations or follow certain orderly and ordered procedures or logical patterns.[36] Although the claims and hopes of some of the early proponents of “artificial intelligence” were inflated, it is not entirely illegitimate to analogize human character to a computer’s “operating system.” How a computer—and a person—acts or behaves depends, of course, in part on the material ingredients—nuts, bolts, hands, eyes, teeth, wires, and so on—of which that computer or person is composed. But neither the behavior of a computer nor the behavior of a person can be described solely by describing that computer’s or person’s material or physical “parts.” Moreover, it would be ludicrous to try to describe the behavior of a computer by attempting to describe its “propensities,” “inclinations,” or “tendencies.” The only truly informative description of the behavior of a computer is one that describes the logic by which the computer operates—the description that captures the computer’s “operating system.” The same is almost certainly true of descriptions of the behavior of people.

The only reason that a description of a person’s dispositions or tendencies ever works—the only reason that such a description ever “says” anything about a person’s likely behavior—is that either the

person providing the description or the person receiving it implicitly provides or infers the rules and operations that “cause” the described disposition or tendency. There must be some rule or principle or set of rules or principles that “generates” the disposition. Otherwise there is no basis for making judgments about when—under what circumstances—the disposition in question might swing into action.[37] A disposition or pattern of behavior is often (though not always) a reflection or expression of a set of internal principles and operations.[38]

In the course of this discussion of the nature of human character I have mentioned Aristotle and other “worthies.” I do not invoke such worthies in order to “prove” that human beings are self­organizing beings who have an internal structure or logic that influences and directs their behavior. I mention such eminent philosophers, theorists, and scientists principally to give solace and reassurance to any people who may wonder if they should trust their own intuitions and common sense judgments about human character. Our intuitions and common sense tell us that there is within each one of us some set of principles and operations—some kind of a structure or “logic”—that influences how we behave.[39] There is no good

reason for anyone to doubt the soundness of such intuitions.

In April of 1997 the New York Times carried a report by Linda Greenhouse[40] that illustrates the relevance of an individual’s inner logic to behavior. The report discussed oral arguments before the Supreme Court in Bracy v. Gramley.[41] The case involved a Chicago judge—Thomas Maloney—who took bribes from defendants in murder cases.[42] Judge Maloney presided at William Bracy’s murder trial, but Bracy did not have the imagination or the guile to offer Judge Maloney a bribe.[43] Whether coincidentally or not, Bracy was convicted and sentenced to death.[44] After Judge Maloney’s defalcations became known—Maloney was eventually convicted of taking bribes—Bracy sought to overturn his conviction. The case eventually made its way to the Supreme Court. The issue before the Supreme Court was whether Bracy had the right to conduct discovery for the purpose of trying to show that he had been denied the right to a fair trial before an impartial judge.[45]

Bracy argued “the trial was fundamentally unfair because there was a substantial possibility that Judge Maloney was unduly harsh in the non-bribe cases to deflect attention from his leniency in the others.”[46] “Justice Scalia,” however, “said he thought it just as likely that rather than punishing those who did not pay bribes, a judge taking bribes to favor some defendants would be lenient in other cases as well to avoid calling attention to his behavior.”[47] Greenhouse quoted Scalia as saying, “[Maloney] would look worse if he were a hanging judge in most cases and a bleeding heart in some.”[48]

The contrasting views of Bracy and Scalia about how Judge Maloney might have reasoned about his treatment of defendants who failed to pay bribes illustrate my thesis about the relevance and probative force of the “internal operating systems” of human beings on their conduct on particular occasions. Bracy and Scalia disagreed about how Judge Maloney probably thought and felt about the risk of detection. But Bracy and Scalia both implicitly agreed that Judge Maloney’s thoughts and feelings about the risk of detection must have influenced Maloney’s treatment of defendants who did not pay bribes. Bracy’s reading of Judge Maloney’s “internal operating system” supported one hypothesis about Maloney’s probable treatment of Bracy while Scalia’s musings about Maloney’s thoughts and feelings supported a rather different hypothesis about Maloney’s behavior at Bracy’s trial. But Bracy and Scalia both assumed that the nature of Maloney’s thinking was pertinent to the question of how Maloney acted at Bracy’s trial.[49] They were entirely right.

[1] See Jim M. Perdue, Who Will Speak for the Victim?: A Practical Treatise on Plaintiff’s Jury Argument 393-394 (edited version of actual arguments in “The Case of the Errant Surgeon”; describing plaintiff as “passive” and “shy,” in part to explain why plaintiff, after developing post-surgical complications, failed to act more

aggressively and promptly to have them corrected); United States v. Fernandez, 94 F.3d 640,1996 U.S. App. LEXIS 22634, *40 (1st Cir. 1996) (unpublished opinion) (argument that defendant committed drug transaction because of greed); United States v. Leigh, 104 F.3d 356, 1996 U.S. App. LEXIS 33499, *1-2 (2d Cir., 1996) (unpublished opinion) (argument that defendant committed fraud because of greed); see also Albert W. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex. L. Rev. 629, 642 (1972) (“It has been held reversible error to call the defendant ‘doubly vicious because he demanded his full constitutional rights,’ a ‘cheap, scaly, slimy crook,’ a ‘leech of society,’ a user of ‘A1 Capone tactics of intimidation,’ and a ‘junkie, rat and “sculptor” with a knife.’ Courts have, however, found no error in cases in which the defendant was called ‘animalistic,’ ‘Iowdown, degenerate and filthy,’ ‘a mad dog,’ ‘a rattlesnake,’ ‘a trafficker in human misery,’ ‘a black-hearted traitor,’ ‘a hired gunfighter,’ ‘a creature of the jungle,’ ‘a type of worm,’ or ‘a brute, a beast, an animal, a mad dog who does not deserve to live.’”).

For a highly informative and deliciously entertaining discussion of insults and other comments about character during closing argument see ROGER C. PARK, TRIAL Objections Handbook § 10.25 (1991). See also Samuel R. Gross, “Make-Believe: The Rules Excluding Evidence of Character and Liability Insurance,” 49 HASTINGS LJ. 843 (1998) (examples of references to character in closing arguments).

43.See United States v. Zimeri-Safie, 585 F. 2d 1318,1321-22 (5th Cir. 1978)

  1. See United States v. Meling, 47 F.3d 1546,1557 (9th Cir. 1995), cert, denied, 516 U.S. 843 (1995).

[4]    See Nelson v. State, 513 S.W.2d 496, 498 (Ark. 1974) (discussing motives to commit first degree murder).

[5]    See Boyle v. Johnson. 93 F.3d 180 (5th Cir. 1996), cert, denied, 117 S.Ct. 968 (1997). Boyle was indicted for capital murder during the course of committing or attempting to commit aggravated sexual assault, and capital murder during the course of kidnapping. Boyle argued that the trial court erred in admitting evidence of his sexual habits and drawings. See id. at 183. The court of appeals held that the evidence was properly admitted. See id. at 185. The court said, “Evidence of Boyle’s sexual obsession was … relevant to the issue of Boyle’s future dangerousness; it tended to show that Boyle ‘would constitute a continuing threat to society.’ TEX. CODE CRIM. PROC. art. 37.071(b)(2) (Vernon 1981).” Id.

[6]    See People v. Daniels, 93 Cal. Rptr. 628, 633 (Cal. Ct. App. 1971) (defendant charged with attempted murder by exploding a bomb in car).

[7]    State v. Berry, 484 N.W.2d 14,17 (Minn. 1992)

[8]    See State v. Abercrombie, 375 So. 2d 1170,1176 (La. 1979)

[9]    See United States v. Thomas, 86 F.3d 647 (7th Cir. 1996), cert, denied. 117 S.Ct. 392 (1996). The defendant was convicted of (1) conspiracy to distribute cocaine base; (2) use or carrying of firearms during the commission of a drug trafficking crime: (3) continuing criminal enterprise (“CCE”); and (4) distribution of cocaine base. See id. at 648. The defendants were members of a gang.

“Story [one of the defendants] was a member of a street gang, specifically the Mafia Insanes of the Almighty Vice Lord Nation. Thomas, Garnett, and Bradford became involved with the gang by taking an oath of loyalty. Story later provided Thomas and Garnett with a written copy of the oath and principles of the gang, and Story and Thomas occasionally reminded Garnett to follow the principles. The oath of the Almighty Vice Lord Nation, which the government introduced into evidence, provides, in part, that ‘nor in the threat of death will I deny those brothers who stand beside me.’ The principles of the Mafia Insanes, which were also admitted into evidence, include a direction to ‘obey all commands without question fear or doubt.’ Trial testimony further revealed that Vice Lords were not supposed to testify against fellow Vice Lords. Many of the street dealers who worked under the defendants recognized that the defendants, along with Garnett and Bradford, were affiliated with the Mafia Insane Vice Lords. The district court admitted the preceding evidence despite defendants’ motion in limine to exclude all evidence of their gang affiliation.”

Id. at 649. The court of appeals held that the admission of all of this evidence (including the oath) was not error. Id. at 652-53.

[10]   Prosecutors Say Man Killed Wife for Insurance Money, The WASHINGTON POST, August 27,1997, at A15.

[11] See infra note 58. There are occasional manifestations of judicial unease with the use of matters such as religious or political beliefs to show the doing or non-doing of an act. Such uneasiness about the use of matters such as religious belief to show conduct surfaced in a classic case that is now generally viewed as being principally about the habit evidence rule. In Levin v. United States, 338 F.2d 265 (D.C. Cir. 1964), the court of appeals, using the language for which the case is remembered, said that religious practice does not achieve the status of an admissible habit both because religiously-motivated practices are voluntary rather than semi-automatic and because religiously-inspired behavior does not achieve the degree of “invariable regularity” that is required to make repetitive behavior a habit. Id. There is reason to think, however, that what troubled the court of appeals was simply the defendant’s attempt to inject his religious beliefs into the case. The trial court in fact admitted evidence of Levin’s habitual religious practices (specifically, his tendency to observe the Jewish Sabbath and his religious motivations for . doing so). The trial court and the court of appeals seemed to draw the line only when Levin offered to have a Rabbi testify to the religious reasons for Levin’s observance of the Sabbath.

The Federal Rules of Evidence prohibit the use of religious belief or its absence to attack or repair the credibility of a witness. Fed. Rule Evid. 610. But there is no parallel prohibition in the Federal Rules of Evidence against the use of religious belief or its absence to show conduct.

There is now a body of constitutional jurisprudence that purports to place some limits (principally in the name of the First Amendment) on the use of matters such as political belief as evidence of conduct. The leading case is Dawson v. Delaware, 503 U.S. 159 (1992). In Dawson—a capital sentencing proceeding—evidence was offered that the words “Aryan Brotherhood” were tattooed on the defendant’s hand. The Aryan Brotherhood refers to a white racist prison gang. Id. at 162. But both the defendant and

the victim were white. Id. at 166. The Court held that the evidence violated the defendant’s First Amendment rights of free speech and association because it proved no more than the defendant’s “abstract beliefs.” Id. at 166-68.

But it now appears that federal constitutional law imposes only very weak constraints on the courtroom use of matters such as political and religious beliefs. For example, a post-Dawson Supreme Court decision seems to require only a showing of the relevance of a defendant’s racist beliefs for their use as evidence against a criminal defendant. See Wisconsin v. Mitchell, 508 U.S. 476 (1993). In Mitchell, the Court said, “The First Amendment … does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a person’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.” Id. at 489. Lower courts have made this point even more explicit. See Boyle v. Johnson, 93 F.3d 180, 184 (5th Cir. 1996) (“Dawson simply requires that the evidence be relevant to an issue at sentencing.”). In any event, in many cases the motivations and beliefs that are introduced as evidence of conduct can scarcely be described as “political,” and vast amounts of evidence about the human psyche are apparently routinely offered and admitted without any suggestion by any party that such evidence implicates constitutional doctrines that protect matters such as rights of association, speech, assembly, and the exercise of religion.

[12]  See United States v. Meling, 47 F.3d 1546, 1557 (9th Cir. 1995) (holding that because evidence was introduced to show motive of greed, it did not violate the character evidence rule); People v. Daniels, 93 Cal. Rptr. 628, 633 (Cal. Ct. App. 1971) (“It is elementary, evidence of motive to commit an offense is evidence of the identity of the offender.”).

[13]  See United States v. McCarthy, 97 F.3d 1562, 1572-73 (8th Cir. 1996) (admitting evidence of prior drug transactions, occurring over a period of years, to show intent and knowledge).

[14]  1A Wigmore, supra note 5, § 52, at 1148.

[15]  Id., §55, at 1159.

[16]  See Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. Pa. L. Rev. 845, 849 (1982) (“In the simplified lexicon of evidence law, ‘character’ may be understood to be a collection of ‘traits,’ each a self-contained packet of potential conduct consistent with previously observed reactions to events, people, or things.”) Despite the tone of detached skepticism in this comment, Professor Uviller does not offer an alternative notion or definition of character. Cf. Richard Kuhns, The Propensity to Misunderstand the Character of Specific Acts Evidence, 66 IOWA L. Rev. 777 (1981). Although Kuhns effectively characterizes current formulations of the character rule as incoherent, Kuhns himself implicitly thinks—or, at least, talks—about character in terms of “propensities”.

The potpourri conception of human character usually does not appear explicitly in judicial opinions—partly because judges are less verbose than law teachers—but it does appear implicitly. See Commonwealth v. John Nagle, 32 N.E. 861, 861 (Mass. 1893) (“Ordinarily the defendant in a criminal case may put in evidence his general good

have independent reasons for believing what I believe about human character. See further discussion in note 57, supra.

Professor Leonard and I draw rather different conclusions from the (supposed) demise of “trait theory.” He seems to suggest that the empirical studies leading to the (supposed) demise of trait theory show that character evidence lacks significant probative value. See Leonard, Rationality and Catharsis, supra note 57, at 26-29. I would suggest that if trait theory is indeed dead, its demise does not necessarily show that character is worthless as evidence. The empirical studies that cast doubt on trait theory may instead only show that a particular theory of human character—trait theory—is invalid. Susan Marlene Davies carefully makes this distinction in her interesting and important paper on character evidence. See Davies, supra, at 528-31. Professor Mendez is on exactly the right track when he implicitly suggests that the possible demise of trait theory and the emergence of a different and possibly better theory of personality require a reconsideration of the prohibition against character evidence. See generally Mendez, supra note 57, (discussing Mischel-Shoda theory) Mendez concludes, however, that even if the alternative Mischel-Shoda theory is valid, character evidence should probably remain inadmissible. See id. at 234. It is true that Professor Mendez does occasionally seem to assume that character = disposition = Allportian traits. See, e.g., id. at 228 (“these findings [casting doubt on Allport’s trait theory] not only undermine ‘common sense’ or intuitive notions of the predictive value of personality traits, but also threaten the law’s assumption about the probative value of character evidence.”) In general, however, Professor Mendez recognizes that it is one thing to say that a particular theory of personality (human character) is a worthless theory and that it is another thing to say that personality (human character) is worthless evidence.

[18]  I am neither asserting nor suggesting that any philosophical movement or school—be it nineteenth century British empiricism or any other such philosophy or intellectual movement—is largely or even partially responsible for the prevalence of the souffle-of-traits conception of human character in American legal discussions of the character evidence rule. Only a careful and exhaustive analysis of the historical record would make it justifiable to advance such a claim. Nonetheless, the existence of such a connection is not intrinsically implausible. It is a fact—a suggestive fact—that some prominent English and American empiricist philosophers and theorists spoke of “character” in much the way that leading evidence scholars such as Professor Charles McCormick and Dean Wigmore did when they talked about character evidence. There is ample evidence that many leading Evidence scholars such as Wigmore were influenced by British empiricism—and by Jeremy Bentham in particular. See generally William Twining, The Rationalist Tradition of Evidence Scholarship, in RETHINKING EVIDENCE: Exploratory Essays 32 (1990).

[19] In my discussion here I do not purport to remain faithful to the details of Hume’s philosophy. I try instead to speak in a general vein about the implications of Hume’s general philosophical position.

[20]    See David Hume, A Treatise of Human Nature Book 3 Part 1 (1738, Past

Masters CD-ROM ed., 1992) (“nothing is ever present to the mind but its perceptions”).

[21]  Hume thought that perceptions are, so to speak, accidental, or fortuitous, and that human thought is the result of such fortuitous perceptions. Human thought about the connections between or among things is therefore legitimate only when and only if human perceptions have certain patterns. Thus, human thought is, so to speak, inherently statistical. See, e.g., id. (“It has been observed already, that in no single instance the ultimate connexion of any objects is discoverable either by our senses or reason, and that we can never penetrate so far into the essence and construction of bodies, as to perceive the principle on which their mutual influence depends. It is their constant union alone with which we are acquainted; and it is from the constant union the necessity arises.”)

[22]  From a strictly empiricist and nominalist point of view, perceptions—or (subjective) sensory experiences—are all we know. We cannot know what lies behind our perceptions. We cannot even know that anything stands behind them. Consequently, we can know ourselves only as beings who have perceptions—or, more starkly, only as a point in space and time at which a variety of perceptions converge. (Indeed, if we are quite rigorous in adhering to our empiricist and nominalist premises, we may not even be justified in saying that we are in fact beings who have or somehow receive perceptions. For to say that perhaps would be to go behind the perceptions themselves, which cannot be done.)

[23]   Indeed, if we are strict nominalists and empiricists, we may be saying too much if we say that our observations or perceptions lead us to conclude that certain people have certain dispositions or tendencies. All that we are really justified in saying is that we have perceived or observed (in the past) certain patterns of human behavior in certain people—that we have observed or experienced certain patterns in the states of human selves. We may not be entitled to project those past patterns into the future or into unknown and unobserved occasions. This, of course, is nothing more than the problem of “induction” that Hume so notoriously wrestled with. Hume’s “solution” of the problem was no solution at all. Cf. 1A WlGMORE, supra note 5, § 37.6, at 1050-1054 n.8 (critique of analogous frequentist theories of induction). Moreover, if Hume’s solution did not solve the problem of induction about events in the cosmos, his nominalist and empiricist approach, pro tanto, also did not correctly solve the question of how one makes sound inferences and judgments about the behavior of human beings. For if sound inference about the cosmos require some theory about the “hidden” structure of the cosmos, the same is true of inferences and judgments about the behavior of human beings: they also require some theory of the structure of human beings, their makeup, and their character.

[24]   A Humean way of thinking about (wo)man and his (her) world—a way of thinking that is nominalist as well as empiricist—has considerable difficulty in explaining the existence of “persons.” Hume’s (radical) philosophy seems to imply that “persons” and their “psyches” exist only if, and only to the extent that, there happens to be some conjunction of events or perceptions—a conjunction that Hume calls “association”—at

their thinking—are little more or nothing more than an accidental confluence of sense data or sensory perceptions.

There must be—Kant thought—some thing or matter that makes a “synthetic unity” out of “apperception.” The mere convergence of sense data and perceptions at a particular space-time locus, Kant thought, does not explain how it is possible that people or persons “exist.” Kant asserted that the unity or identity of a person is possible only if the unity of the person comes from within, so to speak, rather than from without. Stated otherwise: it would not be possible to speak of person’s having a collection of experiences or perceptions if one could not talk or think of an entity—a person—who receives and organizes and orders the experiences that he or she “has.” (While it is true that knowledge of the world does not come solely from within—thinking that would amount to a solipsism—it is also true that knowledge does not come solely from without.) As is well known, Kant thought that—insofar as we can tell—it is the person having experiences who supplies concepts or categories such as space and time, which are matters that make human experience conceivable, or possible. (These categories for experiencing the world lead in turn to the concept of causality. Human beings experience the world as a causally- ordered world.)

For a superb summary of Kant’s philosophy see the entry for Immanuel Kant in The Cambridge Dictionary of Philosophy, supra note 31. at 398.

[26]  Aristotle, De Anima 412a line 29-412b line 6.

[27]  “Anima” is sometimes translated as “soul.” But this is plainly incorrect. “Soul” has the connotation of a substance separate from matter. And if there was one thing that Aristotle insisted on. it was that “anima” somehow inheres in matter and does not stand apart from it nor beside it.

[28]  See id. at 412a line 29 – 412b line 6.

[29]  See id. at 412b lines 17-19.

[30]  Aristotle’s notion of organism has influenced philosophers as diverse as Georg Wilhelm Friedrich Hegel and Alfred North Whitehead. See ALFRED NORTH Whitehead, Process and Reality: An Essay in Cosmology xi (David R. Griffin & Donald W. Sherburne eds., corrected ed. 1978). Aristotle’s theory of organisms and of the makeup of the human animal are more than a matter of antiquarian or historical interest. Some of the modem world’s most sophisticated students of matters such as mind, thought, and intelligence believe that Aristotle’s theory of man and his psyche is essentially right. See Paul Feyerabend, Problems of Empiricism 12-15 (1981) (vol. 2, Philosophical Papers).

[31]   The word “anima”—as used by Aristotle—is probably best rendered as the “animating principle of living things.” Henry Veatch, Aristotle: A Contemporary Appreciation 60 (1974).

[32]  See Hilary Putnam with Martha Nussbaum, Changing Aristotle’s Mind, in Hilary Putnam, Words and Life 22 (James Conant ed., 1994) [hereinafter Words and Life].

[33]    See Jean Piaget, Psychology and Epistemology (Arnold Rosin trans.,

Viking Press, Inc., 1970); THE CAMBRIDGE DICTIONARY OF PHILOSOPHY, supra note 31, at 619 (“The cognitive system of the adult is neither learned, in the Skinnerian sense, nor generically preprogrammed. Rather, it results from the organization of specific interactions whose character is shaped both by the features of the objects interacted with … and by the current cognitive system of the child   ”).

[34]  It is true that until fairly recently—until, roughly, the 1970s—some prominent theorists peremptorily dismissed the idea of anything remotely akin to a “psyche” or “soul” as metaphysical nonsense. If one were to use pseudo-Marxist language, one might say that such theorists dismissed terms such as “psyche” on the ground that the use of such language amounts to the “reification” of non-existent mental states. B.F. Skinner, the father of modem behavioral psychology, is probably the most renowned example of this “hard-headed,” materialist, “anti-metaphysical” attitude. See B.F. Skinner,

[35]    See ZENON W. PYLYSHYN, COMPUTATION AND COGNITION: TOWARD A Foundation for Cognitive Science 1-21 (1984).

[36]   John Haugeland refers to this notion as the idea of “medium independence.” HAUGELAND, supra note 2, at 58. He says, “Formal systems [of which the mind may be an instance] are independent of the medium in which they are ‘embodied.’ In other words, essentially the same formal system can be materialized in any number of different media, with no formally significant difference whatsoever. This is an important feature of formal systems in general; I call it medium independence.” Id. (emphasis in original).

[37]  My argument implies that prior dissimilar conduct can, in principle, be as probative as prior similar conduct. The only important question is whether the prior conduct reveals something about a person’s character that sheds light on the probability that the person might do a particular act. Thus, on my line of reasoning, to show that a defendant probably killed a priest, it might well be appropriate to show that the defendant destroyed the priest’s garden or ripped up religious vestments of that cleric’s religion.

[38]    By suggesting that conscious thought influences action I am making a claim that is inconsistent with the views of some students of “cognitive science.” Some cognitive scientists assert that the thoughts and impressions available to us in our own examination of our selves are really apparitions and that only a deeper set of principles, not available through introspection, is the only thing that “actually” guides and directs the activity of the human organism. Paul Churchland, for example, seems to take such a view. He seems to believe that consciousness is an epiphenomenon and that the functional rules governing human behavior are precisely like the codes that underlie the “behavior” of some (as yet uninvented) computers.    See Paul Churchland.

ANeurocomputational Perspective: The Nature of Mind and the Structure of Science 55 (1989). (“[T]here is no problem at all in conceiving the eventual reduction of mental states and properties to neurophysiological states and properties.”) Even Churchland, however, seems to think that in the interim—while we are awaiting the denouement that computational science promises—we can and should rely on “folk” rules about the sources and causes of human behavior—sources and causes that folk wisdom asserts includes “conscious mental states.” Id. at 1-2. (“We understand others, as well as we do, because we share a tacit command of an integrated body of lore concerning the lawlike relations holding among external circumstances, internal states, and overt behavior.”).

[39] Cf. Peter Tillers, Mapping Inferential Domains, 66 B.U. L. Rev. 883. 916 (1986) (“The occasional value of constructs such as humor or wit cannot seriously be doubted. If

one understands how the witty mind of a particular person works, it is often possible to make some very good guesses about a person’s behavior. Indeed, if one has no sense of a person’s pattern of mental activity, one almost surely misses the person’s jokes.”). See also id. at 927-32 (discussing, inter alia, how an understanding of Ronald Reagan’s mind and his sentiments and the like might improve inferences about Reagan’s probable actions toward Nicaragua during his Presidency) (“Note that Reagan’s logic, no matter

how fuzzy, does not consist of mere dispositions and tendencies      While it may be true

that there are some instances where people simply have certain dispositions, it is also true that in most instances what we refer to as a disposition or propensity is a product of a belief system …. The difficulty involved in talking about human dispositions and proclivities is akin to the difficulty of explaining and predicting natural phenomena by talking about relative frequencies. Observed relative frequencies in both the human and natural context convey significant information only to the extent that an observer has some sense of the logical scaffolding on which such frequencies are constructed.”).

[40]   Linda Greenhouse, Justices Consider How the Taint of a Corrupt Judge Should Be Measured and Remedied, N.Y. TIMES, April 15,1997, at A18.

[41]  117 S.Ct. 1793 (1997)

[42]  Id. at 1795.

[43]  Id.

[44]  Id.

[45]  Id.

[46]  Greenhouse, supra note 81, at A18.

[47]  Id.

[48]  id.

[49]  Justice Scalia’s comments during oral argument about how Judge Maloney might have reasoned were intended to question Bracy’s argument that he should be permitted to gather evidence about Judge Maloney’s “motivations.” On my premises, however, Bracy has the better argument. No abstract model of deliberation, reasoning, or cognitive processes can show how a particular person—Judge Maloney—thought and felt about a matter such as the risk of detection. People, judges, and, even corrupt judges can be and often are quite different; they can have and often do have very different inner worlds or internal operating systems. Hence, if we wish to guess, or infer, how a particular individual or judge thought and felt, it is plainly helpful to gather and analyze evidence bearing on that individual’s inner world. The Court did in fact eventually rule— unanimously—that Bracy did have a right to conduct discovery in an effort to substantiate his hypothesis about Judge Maloney’s treatment of criminal defendants who failed to pay bribes. See Bracy, 117 S. Ct. 1793.