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!})

***

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.

Evidence of a Real Law School

Many graduates of Harvard Law School who have affectionate memories of their alma matter -- and even some graduates whose memories of HLS have a somewhat different tinge -- are in the habit of referring to their alma matter as THE LAW SCHOOL.

It recently came to our attention that the alumni/ae magazine of the New York University School of Law bears the title THE LAW SCHOOL.

The thought that one of these two law schools might have exclusive ownership of the nomenclature "THE LAW SCHOOL" naturally crossed our minds. But this inchoate suspicion that the principle of non-contradiction was somehow being called into question quickly passed from our minds when the tendency of people affiliated with Harvard Law School and New York University School of Law to use self-referential, self-aggrandizing, and self-promoting nomenclature caused a rather different and more important thought to become energized in our brain coils.

While readily and rapidly recognizing that perfect justice is an impossibility on earth, scholars and administrators at the Cardozo School of Law came to appreciate that the moral and legal imperative of non-deceptive marketing makes it essential for Cardozo (the law school) to abandon prior semantic practice and choose a new title for its alumni/ae magazine, a title that recognizes Cardozo's distinctive place in legal education. After extensive deliberation, it was decided that the new title of Cardozo's alumni/ae magazine would have to be none other than "THE REAL LAW SCHOOL." We came to appreciate that only this nomenclature can circumspectly but clearly communicate to the world (and to potential tuition-paying students) the message that at Cardozo, which is a true community of scholars --, the message that at Cardozo matters such as political proclivities and wealth are not what (generally) count but that only matters such as intellectual creativity and scholarly substance (generally) do. [The word "generally" is inserted occasionally in the preceding sentence -- twice, to be precise -- in recognition of the previously-mentioned impossibility of perfect terrestrial justice. Like Immanuel Kant, Cardozo's community of scholars recognizes that human perfection lies in the struggle for perfection. {And if anything is clear, it is clear that the eminent and enlightened legal scholars at Cardozo struggle a lot -- over money, for example.}]

Veridical & evidentially-supported veritas to you all!

DNA & the Central Park Jogger Case

DNA Redux to the Fourth Power: Thoughts Inspired by -- but Not necessarily Faithful to the Facts and Recent Developments in the Central Park Jogger "Wilding" Case

Main Scenario: Three men -- A, B & C -- are charged with collaborating in the aggravated sexual assault -- the rape -- of Vila Victim.

Question 1: If a DNA test almost conclusively shows that the semen found in Vila Victim's vagina several hours after the rape was not either A's, B's or C's, does this test show that A, B & C are not guilty of the crime charged?

Question 2: Is the analysis of Question 1 influenced by whether A, B & C can be held guilty of the crime charged -- collaboration in aggravated sexual assault (assume for now = "collaboration in rape") -- only if one of the three -- A, B or C -- raped Vila Victim?

Question 3: If the criminal liability of A, B & C requires a finding that at least one of the three defendants -- A, B or C -- must have raped Vila Victim, does it follow the DNA test in the Main Scenario (above) proves that A, B and C are not guilty of the crime charged?

Question 4: If your answer to Question 3 is yes, would your answer remain the same if you knew that the source of the supposedly exculpatory DNA is semen that was recovered from Vila Victim's vagina 24 hours after the possible rape of Vila Victim by A, B or C?

Question 5: If your answer to Question 4 is yes, would you be tempted to change your answer if the DNA test shows that it is very probable that (i) D was the source of the semen found in Vila Victim's vagina, (ii) D was Vila Victim's close male companion, and (iii) Vila Victim went home to her apartment immediately after her possible rape and spoke on the telephone with D?

Question 6: Revert to the following assumptions: (i) if A, B, and C are to be found criminally liable, one of them must have raped Vila Victim and (ii) semen is extracted from Vila Victim's vagina shortly after the (possible) rape, and (iii) a DNA test shows that the source of this semen is not A, B or C, but, rather, D, a close male companion of Vila Victim. Under these circumstances are we compelled to conclude that A, B & C are not guilty of the crime charged? Does the answer to the last question depend on whether the extraction of semen from a vagina necessarily or very probably leads to the extraction of all kinds of semen present in a vagina?

Question 7: Does the answer to Question 6 also depend on whether ejaculation and the ejection of sperm are necessary for the commission of the crime of "rape"? (But would we want to know whether extraction of fluids from a vagina by medical personnel will necessarily or very probably extract all foreign bodily fluids, skin particles, cells etc. and would we want to know whether penetration of a vagina by a penis necessarily or ordinarily leaves traces of such foreign substances even in the absence of ejaculation? {Forgive me for using this sort of language. But to pose some questions, I cannot avoid using such language.})

Question 8: Further consideration of the effect of substantive law: Does the analysis of the effect of the DNA evidence on the liability of A, B, and C depend on whether "aggravated sexual assault" can be committed without "penetration"?

The Moral of this Story: Even if we assume that DNA technology and laboratory procedures have improved so much that when a DNA test shows a "match" or "exclusion" we are effectively compelled to conclude, respectively, (i) that two samples containing DNA have a common source or (ii) that two such samples do not have a common source -- even if we assume that DNA evidence and laboratory procedures have gotten this good, the probative force of DNA evidence on a question such as criminal guilt or innocence always depends on a swarm of surrounding assumptions, evidence, and facts. Bottom line: DNA by itself never establishes a proposition such as "guilty" or "innocent."