Conclusion: Unresolved Issues

I have argued that the current character evidence rule is an unstable halfway house between (i) a legal regime that altogether prohibits the use of character to show the doing of an act and (ii) a system of proof rules that operates on the premise that a person’s mental and emotional makeup is a powerful indicator of behavior which the law cannot afford to abandon. Nonetheless, it is premature to assert that the law should now abandon the remnants of the prohibition against the use of human character to show conduct. It is true, I think, that the prohibition against circumstantial character evidence is more fiction than fact. It is also true, I think, that the character evidence rule, as porous as it already is, is gradually becoming yet more porous. It is even possible that the character evidence rule is headed towards oblivion. Nonetheless, I am not yet sure that oblivion is where I want the character evidence rule to go. This is only partly because I recognize the justice in the observation that the incoherence of the character evidence rule is an insufficient justification for abolishing the rule. We need to pause before performing radical surgery on the remnants of the character evidence rule because the use of character evidence presents risks that have not yet been adequately studied. I think that the standard justifications for a prohibition against circumstantial character evidence are unconvincing. Nonetheless, the use of character evidence may be dangerous or unwise for other reasons.

If it is true that human character is the animating spirit or operating system of a human organism, there are two or three features of human character that suggest that the use of character evidence in adjudication is problematic. The first is the complexity of the internal system of rules and principles that regulate human conduct. The second is the deep and tacit nature of many of the internal principles and operations that regulate the behavior of human beings.

The complexity of the human operating system raises some obvious questions. The first question is whether the complexity of human character generally or necessarily renders partial or fragmentary information about human character entirely or largely worthless.[1] The second question is whether the amount of evidentiary detail that is necessary to do justice to the complexity of human character is so great that it is unaffordable.

The tacit nature of much human character and the tacit nature of much knowledge of human character present an additional array of issues.[2] The first question is whether it is possible, in the courtroom, to generate the kind of tacit (but genuine) knowledge of character that people sometimes attain as a result of their ordinary interactions with people such as family members and friends. My view is that this is almost certainly not possible.[3]

If I am right about the improbability of significant tacit learning by the trier of fact about the character of witnesses and parties on the basis of the trier’s observations of the courtroom behavior of witnesses and parties, the next question is whether it is possible, in principle, for a trier of fact to acquire meaningful information about an internal operating system whose operations are so tacit and deep that the person in whom that operating system resides may himself not have a very good understanding of its nature.[4] Can reliable or useful character evidence be generated in a formal judicial setting such as a trial in which parties, witnesses, and triers do not act or interact “naturally”?

It is possible that the answer to this second set of questions is “yes.” In particular, it is possible that the trier of fact can acquire significant knowledge about the character of witnesses and parties the way a biographer does—by acquiring and studying large collections of details about the people whose character and behavior are in question. Suppose that this is so. The tacit, or submerged, nature of human character may then join forces with the complexity of human character to present a third riddle about the value of character evidence.

Is it possible that our system of litigation and proof is so contentious and so coarse, and the human internal operating system so complex and submerged, that it is just not possible for our system of litigation and proof to produce reliable verdicts about a matter so subtle and complex as human character?[5] The American system of litigation and proof is both contentious and adversarial. One astute scholar felicitously refers to this system as a “super-adversary system.”[6] Is it possible and probable that large amounts of character evidence—such as detailed life histories—are peculiarly and excessively susceptible to manipulation and distortion in an adversary and contentious system of litigation and proof such as ours? In short, is it the case that large amounts of character evidence—detailed personal histories, for example—are peculiarly susceptible to manipulation and that in our adversary and contentious system of proof otherwise nuanced evidence of human character—evidence, that is, of the complex internal operating system that we call human character—would surely be corrupted and degraded and that the necessary nuances about character would be obliterated in the heat of courtroom warfare?[7] This is a question that requires further study and investigation.

There is one last major question that the tacit nature of human character and the complexity of character suggest. It bears repeating that human character is elusive as well as complex. That is in part because character is deep within each one of us; that is, there are many components of character that are hidden from the immediate view of strangers and even of ourselves. This suggests a question of the utmost importance: Is it the case that meaningful—that is, detailed—evidence of character must peer so deeply into the human heart and soul, into the inner recesses of the mind and soul, that such evidence ought to be regarded as so demeaning and degrading that such evidence ought to be prohibited for that reason alone? There are obvious differences between the nightmarish sort of inquisition portrayed in Arthur Koestler’s Darkness at Noon9S and the sort of “inquisition” that would occur if parties in American trials were allowed to submit detailed life histories of witnesses, parties, and other actors. Nonetheless, serious attention needs to be given to the possibility that the mere use in litigation of some kinds of character evidence might so expose the inner recesses of people’s hearts and souls to public view that the use of such evidence should be prohibited—perhaps by the “character evidence rule.”[8] [9]

[1]        Although it may be correct to say that it is necessary to have a lot of character evidence to understand character well, it does not follow that a little evidence of character is always worthless or (worse yet) always worse than no character evidence at all. An ordinary trier of fact is astute enough to realize that fragmentary evidence may have to be discounted. It is possible, moreover, that even fragmentary information about character can provide an observer with a clue about the (complex) makeup of a person. It should not be forgotten that we can and do use background or default assumptions when we have few details. For example, in the absence of further details, and knowing only that the defendant previously raped a little girl, we are perhaps entitled to guess that this child abuser thinks and feels the way that we believe most other child abusers think and feel.

[2]     Much human knowledge in general is tacit. See Michael Polanyi, The Tacit DIMENSION (1966). It seems clear that much knowledge of character is also tacit or implicit rather than explicit.

[3]      The courtroom is generally a singularly inappropriate venue for the acquisition of tacit knowledge of human character. Participants in the American system of litigation and adjudication—I have in mind participants such as witnesses and parties—are taught to act in highly stylized ways, which makes it difficult for triers of fact to use informal behavioral cues to acquire reliable information about the internal operating systems of such courtroom participants. A courtroom setting is an “artificial” setting and, thus, even if the person whose behavior is to be assessed is in the courtroom, the behavior of that person will be artificial and it probably will therefore not convey any useful information about that person’s character to the trier or triers of fact.

[4]      The argument that the attainment of such knowledge in the courtroom is in principle impossible might begin with the premise that practically all good knowledge of human character is acquired primarily as a result of interactions between the observer and the actor or as a result of the observer’s direct observation of the actor’s behavior (an actor such as a child or a friend). In this process it is possible that neither the actor nor the observer can explicitly describe what either of them believes the actor’s character to be. If so, it is arguable that it is not feasible to make accurate determinations in a courtroom setting about the character of any person.

[5]      The problem I am trying to pose is acute. I am assuming that “deep character”—

if we can grasp it—is very probative of behavior. But I am also suggesting that our contentious system of litigation may be incapable of generating accurate assessments of the internal operating systems—the internal “logic”—of human beings.

[6]      Gordon Van Kessel, Hearsay Hazards in the American Criminal Trial: An

Adversary Oriented Approach 49 HASTINGS L.J.___ (1997).

[7]     The question in the text presents the related question of whether detailed evidence of character is any more subject to distortion and manipulation than any other kind of evidence. Many students of evidence and inference believe that all rational judgments about evidence are in some sense “subjective” or “personal.” See Glenn Shafer, The Construction of Probability Arguments, 66 B.U. L. REV. 799 (1986). Nonetheless, some legal scholars have drawn a distinction between hard facts and soft facts. For example, Mirjan DamaSka once suggested a distinction between “external facts” (such as the speed of a car) and “internal facts” (such as knowledge) and he suggested that methods of proof for the two types of facts might also differ. See Mirjan DamaSka, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1085 (1975). See also 1 WlGMORE ON Evidence, supra note 5, § 1 n. 1, at 3-6 (reviser’s extended discussion of the question of a possible difference between different kinds of factual questions and a possible difference in the degree of their hardness or objective ascertainability). If one takes the position that conclusions about human character are “soft facts” rather than a “hard facts,” the thesis that character evidence is particularly dangerous because it is particularly vulnerable to manipulation and distortion may seem to gather some force. But the argument that questions about human character are soft may prove too much. For if questions about character are soft, so are questions about matters such as intent and knowledge. Yet the law routinely allows and requires the submission of evidence about issues such as intent and knowledge.

[8]      Arthur Koestler, Darkness at Noon (Daphne Hardy trans., 1941).

[9]      Evidence scholars need to devote much more thought than they have to the possibility of a connection between the character evidence and the “policy” of preventing unnecessary human degradation. They should consider the possibility that the character evidence rule impedes or should impede the use of evidence about the inner recesses of the human soul. They need to pay some attention to the possibility that the mere use of evidence such as detailed life histories degrades the dignity of the person whose inner recesses are exposed. They need to consider the possibility, for example, that the degradation that Rubashov suffered in Koestler’s DARKNESS AT NOON, supra note 98, was attributable, not primarily to the physical punishment and correction that Rubashov suffered at the hands of his inquisitor, but principally to the fact that Rubashov’s deepest feelings, fears, and beliefs became known to an official inquisitor.