Wednesday, February 24, 2010

Is Racial or Religious Prejudice a Character Trait or Is It Something Else? And Why Should You Care?

Racial prejudice and religious prejudice are obnoxious weeds. Why does it matter whether they're called character traits or whether they're called something else?

One reason why it matters what they're called is that the American "character rule" bars the use (in a trial) of a person's character to show the person's conduct. The American character rule does not bar the use of a person's characteristics, features, feelings, or thoughts when those characteristics are not -- are not considered to be -- character traits, dispositions, or propensities. See the beginnings of a treatment of this point at Is racial prejudice or a similar prejudice admissible to show conduct? in the evidence module of Spindle Law.

I also discussed this question years ago: many years ago I published some words about the question whether prejudice is or is not character. I did so in my revision of the first volume of Wigmore's Treatise. It is always gratifying to see a court acknowledge this -- as did a California court, albeit in an "unpublished" opinion:

A Question Revisited: Is Racial Prejudice or Animus a Character Trait or a Motive for Purposes of the Character Evidence Rule?

Bryant v. Sara Lee Corp., 2009 WL 378849 (Cal. App. 2009) (opinion not officially published):

African-American Plaintiffs brought a civil action on behalf of themselves and others against their former employer Sara Lee and their former supervisor Wyche for employment discrimination, intentional infliction of emotional distress, and other causes of action. Plaintiffs' claims rested in part on the employer's alleged creation or sufferance of a work environment hostile to African-Americans. Plaintiffs claimed that Wyche created this hostile environment and inflicted emotional distress by racial slurs he made at the workplace.

Leo Bryant (Bryant) and Ronald Amey (Amey) seek reversal of the judgment following the jury trial on their claims for racial harassment and intentional infliction of emotional distress. Their primary claim with respect to the trial is that the court erred in excluding evidence under Evidence Code section 352 of offensive comments by their supervisor, respondent Robert Wyche (Wyche), made at other times, other locations, or about other protected groups."

  • Note by Tillers: Plaintiffs' claims were apparently based on events that allegedly took place sometime after 2005.
    The [trial] court granted the motions to exclude evidence of lawsuits or complaints of racial harassment or discrimination filed by individuals other than the plaintiffs, testimony or references to testimony of the plaintiffs in a different case against Sara Lee and Wyche, references to specific racial slurs and comments made by Wyche in the 1970's and 1990's, statements or testimony by Leo Montoya regarding ethnic slurs by Wyche, statements or testimony by Glen Lefort about a racial comment made by Wyche prior to Bryant's and Amey's employment under Wyche, statements or testimony by employees about interactions with Wyche in depots other than Menlo Park or Redwood City or at times other than when Bryant and Amey worked under Wyche, and statements or testimony about actions or statements by Wyche "that were not shared with [Bryant and Amey] during the period they worked under Wyche."

    The excluded evidence fell into three general categories: evidence of racial slurs made by Wyche before Bryant or Amey were employed by Sara Lee; evidence of comments made before Wyche began supervising Bryant or Amey or about which they did not learn during their employment; and evidence of slurs made by Wyche about protected groups other than African-Americans. Sara Lee and Wyche maintain that the excluded evidence was not relevant, was inadmissible character evidence, and was more prejudicial than probative under Evidence Code section 352."

    Much of the evidence excluded by the court could be considered "propensity evidence," barred under Evidence Code section 1101. (Evid.Code, § 1101, subds.(a), (b).) "It has long been the rule, of course, that evidence of uncharged misconduct is inadmissible to establish a defendant's propensity to commit the offense charged. The bar on the use of such 'propensity evidence' is not that it lacks relevance. Rather, it is the concern that such evidence may be regarded by the trier of fact as too relevant, 'provoking' ... 'an overstrong tendency to believe defendant guilty' based on the commission of the prior ac[t]...." (People v. Ortiz (2003) 109 Cal.App.4th 104, 111, citing 1A Wigmore on Evidence (Tillers rev.1983) § 194, at p. 1859.) Evidence of a prior act may, however, be admissible "to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident ... other than his or her disposition to commit such an act." (Evid.Code, § 1101, subd. (b), italics added.)

    Bryant and Amey maintain that evidence of Wyche's "repeated misconduct" in uttering racial slurs since the 1970's was relevant "[f]or purposes of punitive damages [because] 'a recidivist may be punished more severely ...,' " not for demonstrating propensity. Assuming arguendo that this evidence would have been relevant to the issue of punitive damages, the parties stipulated that trial on the issue of punitive damages would be bifurcated. The jury rendered a defense verdict, and consequently never reached the issue of punitive damages. Accordingly, this evidence was not relevant at the trial of the liability issues.

    The appellate court thus apparently concluded that Whyche's racial slurs about other groups -- other African-Americans -- or at other times were inadmissible to show Wyche's conduct on other occasions, his conduct while plaintiffs worked under his supervision.

    The appellate court affirmed the judgment for the defendants.

    As I (proudly, or vainly) noted earlier, this opinion cites my revision of Wigmore's treatise. But, but, but ... the court's opinion does not mention a different part of my revision, a part that that mentions several California cases holding that under some circumstances racial prejudice is something other than "propensity" or "character."

    So it goes.


    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

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