By: Teneille R. Brown*
Abstract
Common law judges were worried that if jurors learned of the accused’s past acts or character traits, they would punish him not for being proved guilty of this crime, but for the kind of person that he is. Unfortunately, our attempt to correct this powerful tendency has only made things worse. When jurors cannot hear how someone has behaved in the past, they will instead rely on immutable facial features—rooted in racist, sexist, and classist stereotypes—to draw character inferences that are even more inaccurate and unfair. Undisputed findings from social psychology demonstrate that we rely on features like the distance between the eyes, the width of the nose, the angles of the jawline, and the color of skin to spontaneously infer whether someone is threatening, intelligent, or kind. This in turn predicts election outcomes, hiring decisions, teaching evaluations, and even jury verdicts. Because this split-second process is subconscious and pervasive, it is not susceptible to mitigation through jury instructions. Witnesses will be considered untrustworthy based only on their face, and in some cases, justice may require admitting bolstering evidence before their character is technically attacked. I thus propose reversing the ban on character evidence, in favor of a presumption of inadmissibility for immoral traits only. My proposal has a number of benefits, including retethering the rule to its moral, normative roots and acknowledging that not all past act evidence will be unfairly prejudicial. Finally, delivering the greatest balm to judges and attorneys, admissibility would no longer hinge on the gossamer-thin distinction between propensity and non-propensity uses. This is because jurors will automatically use whatever information is available, including evidence of mental states, to infer character traits, predict behavior, and assess blame.
*Teneille R. Brown is a Professor of Law in the Center for Law and the Biomedical Sciences at the S.J. Quinney College of Law, and a member of the Center for Health Ethics, Arts and Humanities at the University of Utah. She would like to thank Ron Allen, Michael Risinger, Michael Saks, Emily Murphy, and Ed Cheng for their feedback on drafts of this project, as well as the members of the Utah Supreme Court Evidence Advisory Committee, who likewise provided helpful comments on this proposal. While writing this Article during the early months of the COVID-19 pandemic, she was caring for and teaching two young children at home