A. Theories Underlying Admissibility of Character EvidenceThis little gem of an opinion is only seven pages long.
The admissibility of character testimony is regulated in two separate areas of our New Mexico Rules of Evidence: in the relevancy rules of Article 4 and in the witness rules of Article 6. Both of those areas are implicated in the issues presented in this case, which call on us to address the admissibility of character testimony as circumstantial evidence of relevant conduct under Rule 11-404(A)(1) (providing for admission in a criminal case of "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same"), as well as the admissibility of character testimony as circumstantial evidence of credibility of a witness under Rule 11-608(A) (providing that "[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation ... [regarding] character for truthfulness or untruthfulness ... after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise"). The two inquiries are founded on the same underlying beliefs about the relationship between character and conduct, but their uses involve different policy considerations and different rules of application.
Courts and commentators have observed that these uses of character evidence are often misunderstood in their own applications and are frequently confused with one another. ...
This case is an illustrative example. The record reflects confusion by counsel on both sides, by the district court, and by the Court of Appeals as to the differing purposes and applications of the separate admissibility of character testimony as substantive evidence and as witness credibility evidence. To aid in understanding and clarification, we first review the theories, history, and purposes relating to their admissibility.
A review of the development of character evidence shows that its use extends further back into our legal history than even such fundamental rights as those of an accused to testify or to have the assistance of counsel. The theory underlying the relevance of character evidence is based on our common human experience that "[t]he character ... of the persons we deal with is in daily life always more or less considered by us in estimating the probability of their future conduct." 1A Wigmore, Evidence § 55, at 1159 (Tillers rev.1983). In one of the oldest scraps of papyrus to survive from the days of the ancient Egyptians, a king instructs a young prince that "[a] good character is remembered." 1 Miriam Lichtheim, Ancient Egyptian Literature 107 (1973).
Modern scientific research now confirms what human beings have always observed in their own family and community relationships, that the average person is able to explain, and even predict, a subject's behavior with a significant degree of accuracy. Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 Crim. L. Bull. 504, 517 (1991); see Thomas J. Reed, The Character Evidence Defense: Acquittal Based on Good Character, 45 Clev. St. L.Rev. 345, 356 (1997) ("According to the best available psychological data, character or personality trait theory has a scientific basis. Human beings do behave more or less consistently across a multitude of similar situations."). One of the predictive tools by which those determinations are made is the consideration of one's character traits based on patterns of past conduct. See, e.g., Walter Mischel & Yuichi Shoda, A Cognitive-Affective System Theory of Personality: Reconceptualizing Situations, Dispositions, Dynamics, and Invariance in Personality Structure, 102 Psychol. Rev. 246, 246 (1995) (summarizing "recent empirical data demonstrating that individuals are characterized not only by stable individual differences in their overall levels of behavior, but also by distinctive and stable patterns of behavior variability across situations"). Because conduct reflects character, knowledge of character is necessarily helpful in predicting conduct.
The State successfully argued in the district court the same position that it has maintained throughout the appellate process, that "there is no pertinent character trait that has been put in issue" because there is no character trait pertinent to a person's propensity to commit any crime of solicitation, including the crime of solicitation to commit burglary charged in this case. In response, defense counsel has argued that "evidence whether he is honest, he's the type of person that commits dishonest acts of robbery and burglary is pertinent."
In this case, Defendant proffered that his character witnesses would testify that he was both an honest and a truthful person. Throughout this litigation, the parties have made no efforts to distinguish honesty and truthfulness as traits having differing relevance or applicability. Honesty and truthfulness, if indeed they can be considered separate traits in other contexts, have been treated as interchangeable in New Mexico case law involving analogous character trait relevance. See Melendrez, 91 N.M. at 261, 572 P.2d at 1269 (holding that offenses of "deceit, fraud, cheating, or stealing" are relevant to both honesty and veracity for purposes of Rule 609 impeachment). The district court determined that evidence of neither was admissible in a prosecution for solicitation to commit burglary. The Court of Appeals, relying in part on the analogous Melendrez opinion construing relevance for Rule 609 purposes, concluded that evidence of both was admissible. The State asks us to hold that neither trait was admissible, and Defendant asks us to hold that both were admissible. Although the parties did not articulate any distinction between the two, our research reflects that we must address whether we should recognize any such distinction for the purposes of deciding this case.
A few courts in other jurisdictions have taken the view that honesty and truthfulness should be given separate evidentiary application under Rule 404(A)(1), on the theory that "one who is honest must also be truthful because honesty subsumes truthfulness," while "one may be truthful but not be honest." Wiggins v. State, 778 S.W.2d 877, 889 (Tex.Ct.App.1989). Our research, however, has found no psychological, sociological, or other scientific or empirical research to support what appear to be only ipse dixit theoretical distinctions. ... There is simply no persuasive authority to support a theory that psychologists or ordinary citizens would draw any realistic distinctions between the likely behaviors of an "Honest Abe" and a "Truthful Abe."
In this case, the State makes no argument that evidence of honest and truthful character would have been inadmissible if Defendant had been charged with personally committing a burglary. Instead, it argues that a character trait that is pertinent to a charge of burglary is not pertinent to a charge of soliciting someone else to carry out the same burglary.
The State's theory seems to focus on an accused's particular physical role in the planned crime, instead of the presence or absence of his criminal intent, in determining which character traits are pertinent to a consideration of the likelihood of his participation in the crime. This misapprehends why the law considers character to be relevant in determining guilt or innocence. Criminal intent is the essence of what distinguishes criminal from non-criminal conduct.
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. Morissette v. United States, 342 U.S. 246, 250 (1952) (quoting William Blackstone, 4 Commentaries *22); see also State v. Yarborough, 1996-NMSC-068, ¶ 9, 122 N.M. 596, 930 P.2d 131 ("We must be sure that the penalties associated with a felony conviction are imposed only in response to an act done with at least the minimum culpable state of mind."). In the more colorful phrasing of Justice Oliver Wendell Holmes, "even a dog distinguishes between being stumbled over and being kicked." Oliver Wendell Holmes, Jr., The Common Law 3 (Little, Brown & Co.1938) (1881).
The fallacy of focusing on an accused's physical participation, instead of the relationship between his intent and the commission of a crime, is demonstrated by a few hypothetical differences in how one could intentionally assist in the commission of a burglary. The State has never argued with the proposition that an honest person would be less likely than a dishonest person to enter a home with the intent to steal. Would honesty be any less relevant where a person is accused of reaching through a window to accomplish the same theft, without getting his whole body inside? Or where a defendant allegedly used a pair of tongs to reach inside without any part of his own body crossing the threshold? Or where a defendant is charged with having used a remote control robotic device to make the entry and theft? Or where the defendant, as in this case, allegedly used a human agent instead of a mechanical device to accomplish the very same theft? It is obvious to us that the character inquiry goes to whether a person would be likely to participate intentionally in a crime of theft and not on the physical means of accomplishing that dishonest result.
American legal scholars increasingly ignore judicial opinions. Martinez illustrates the folly of such a cleavage between the academic world and the judiciary: apart from the non-trivial fact that judges make much law, Martinez is a forceful reminder that there is much intelligence on the bench.
On the merits: if the legal process were able to digest a multitude of character details with the same subtlety and discrimination that ordinary people do in their ordinary lives, it might make sense to allow the prosecution to introduce details about the character of the accused during the prosecution's case in chief. But I think it is wildly unrealistic to think that this could be done at reasonable cost in an ordinary hum-drum criminal trial or that nuanced evidence about the details of the behavior of an accused over a period of years could be accurately reconstituted in the resource-starved hothouse of an ordinary party-dominated American criminal trial. Indeed, there is reason to wonder how well any system of criminal adjudication could reproduce such information in the detail that is necessary to make such information predictive of human behavior. So we're in a pickle, aren't we?