Tuesday, December 17, 2002

Rough notes on the slowly-budding book GENERAL PRINCIPLES OF EVIDENCE AND PROOF: Installment #4: General principles of evidence and the legal prohibition against the use of "character" to show conduct

In American legal treatises and casebooks, discussions of "relevance" and "character evidence" are usually in close physical proximity. This is typically explained by the claim that the topics of "relevance" and "character" are closely related. But recently I wondered if the topic of character evidence belongs in my book, a book that aims to discuss general principles of evidence and proof (see my blog Evidence in General and Evidence in Particular, 12/13/2002), and not just the characteristics that 21st century proof in American litigation happens to have.

Although I don't believe that character evidence has an unusually close connection to the topic and principle of relevance, I have tentatively concluded that the topic of character evidence perhaps does belong in my book -- or, at least, that this topic would not be out of place in a book such as mine -- because

(i) proof in litigation always or almost always involves judgments about human action;

(ii) judgments about human conduct may be singular because human beings are, quite possibly, distinctive entities in this cosmos of ours; and

(iii) the prohibition against "circumstantial" use of character (a/k/a disposition a/k/a propensity) to show conduct invites and possibly requires careful consideration of the attributes of human beings and the distinctive patterns of inference that those distinctive attributes may generate or invite.

Cf. What Is Wrong with Character Evidence?

But perhaps my thinking has been unduly influenced by my sense of what my publisher would like to see in my book. What do you think? Do you think that my book should or should not consider the character evidence rule? (Is it the case that the sort of justification I have given above would serve as a justification for discussion of any feature of modern American proof in litigation?)

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Given what I have just said (above), isn't it the case that I must also say that one of the essential attributes of proof is the making of judgments about human action? Cf. blog "Installment #3," 12/15/2002.

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