The Character of Habit & The Character of Character

The American law of evidence purports to prohibit attempts to show what a person does by showing what a person is.

In other words: the law of evidence purports to prohibit attempts to prove a person's conduct on a particular occasion by showing that same person's character or disposition. See, e.g., Federal Rule of Evidence 404(a).

Courts have frequently held that this prohibition against "circumstantial character evidence" -- but when is evidence ever anything but "circumstantial"? --, courts have often held that the character evidence rule bars the use of a person's drinking habits or practices to show that that person was or was not intoxicated on a particular occasion -- at the time of an automobile accident, for example. See Advisory Committee Note to Federal Rule of Evidence 406 ("evidence of intemperate 'habits' is generally excluded when offered as proof of drunkenness in accident cases"). And courts have often reached this conclusion even though the law of evidence in every U.S. jurisdiction provides that evidence of "habit" is admissible. See, e.g., California Evidence Code Section 1105 (habit admissible).

But there are cases to the contrary. For example, consider State v. Radziwil, 235 N.J. Super. 557, 563 A.2d 856 (1989). There a New Jersey court held that a criminal defendant's drinking practices were admissible to show that the defendant had been intoxicated at the time of an autombile accident and -- furthermore -- that evidence of the defendant's drinking practices was sufficient, by itself, to support a jury verdict that the defendant had been intoxicated at the time of the accident.

The circumstances of Radziwil made the evidence of the defendant's drinking proclivities particularly probative. But is that all there is to the character evidence rule: does the prohibition against character evidence only amount to the injunction "Thou shalt not use character evidence -- unless, of course, the character evidence happens to be particularly juicy, unless it's darned good character evidence, unless, that is, the character evidence has a lot of evidentiary & inferential ooomph!"?

How pious we sometimes are about what the law does!

Is the character evidence prohibition an example of societal hypocrisy?

We -- courts, lawyers, law teachers, legislators -- claim (occasionally) that the law does not use a person's attributes, a person's character, to show a person's conduct, a person's behavior. But what on earth is the law doing when it allows the use of a criminal defendant's resentment or hatred of a victim of a murder to show that the defendant rather than someone else was probably the killer? What on earth is the law of evidence doing when it allows the use of a criminal defendant's fascination with witchcraft or voodoo to show that the defendant killed the victim of a homicide during a witchcraft or voodoo ceremony?

The evidence that happens to be barred by the rule against circumstantial character evidence is a tiny island in an ocean of admissible evidence about people's physical attributes, psychic makeup, emotional dispositions, intellectual inclinations, and world-views. It is only in some Alice-in-Wonderland that we can say that American law generally prohibits the use of human character, human dispositions, human proclivities, to show human conduct.

So what? So what if our law doesn't really --, so what if U.S. law in reality does not generally bar the use of character to show conduct?

The same question in different dress:

Putting to one side some limitations on the use of certain types of dispositions in certain kinds of situations -- limitations, for example, on the use of sexual dispositions to show certain types of sexual conduct by people in certain kinds of situations, limitations that could be preserved by carefully-tailored rules --, what would we lose if we abolished the character evidence rule?

Only some hypocrisy? Or would we lose something of value? If so, what -- precisely?

If we got rid of the character evidence rule, would we lose the presumption of innocence in criminal cases and would we effectively abandon the rule that guilt must be show beyond a reasonable doubt?

If we abolished the character evidence rule, could not the jury still be told that it can convict a defendant only if it is convinced beyond a reasonable doubt of the defendant's guilt -- and aren't juries intelligent enough to understand that it is not necessarily, very probably, or probably true that "if (s)he did it before, (s)he did it again"?

If we got rid of the character evidence rule, would law enforcement personnel abandon careful investigation and simply round up the usual suspects?

This risk -- the risk of sloppy law enforcement -- assumes, does it not, a certain amount of inferential stupidity on the jury's part -- and a considerable amount of incompetence on the part of criminal defense counsel, incompetence resulting from counsel's failure to point out at the relevant hearing or trial how law enforcement personnel conducted its investigation? (Well, o.k., given the impecunious condition of most criminal defendants, perhaps fears about incompetent representation are not baseless. But aren't there measures short of exclusion of probative evidence that will lead law enforcement personnel to conduct proper investigations?)

I can't survey all of the possible justifications for the character evidence rule. I have already done that elsewhere -- What Is Wrong with Character Evidence? -- and, besides, you wouldn't -- I assure you! --, you wouldn't want me to do that (again) here.

So, Gentle Reader(s), I leave you with these two questions:

1. Does anyone believe that character evidence was not used to prove the guilt of Timothy McVeigh or Charles Manson?

2. If not -- if you think character was indeed used to show both McVeigh's and Manson's guilt --, do you really wish that the prosecution had been barred from using evidence of McVeigh's twisted political beliefs or the Manson clan's theory of helter-skelter?

(Yes, I know, I know: these are rhetorical questions, and answers to these two questions may not prove much except the fact of your horror at McVeigh's and Manson's vile crimes. But you get my point, don't you? {'Fess up!})

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But we do need a rule -- don't we? -- that would bar governments from attempting -- or that would at least limit government attempts -- to peer deeply into our souls, to look into the inner recesses of our psyches. Isn't that right? But cf. Searching for Evil: An Examination of Evil and Its Persistence in the American Legal System.