Wednesday, August 29, 2012
Daniel David Blinka (Marquette University Law School) has posted Character and the Protean Culture of Evidence Law on SSRN. Here is the abstract:
Although "character" is a core concept in evidence law, its meaning is unsettled and contentious. Character is often left undefined or generalized as a species of propensity evidence. Some vigorously debate whether it has a "moral" or "ethical" component. A recurring chord frames character as a psychological construct, criticizing current law for relying on "bad" science (trait theory) and hoping that neuroscience and psychology (interactionism?) will remedy the defect. Doctrinal disputes about character's meaning reveal telling fissures in evidence law that reflect a broader dissonance in contemporary society, particularly the fraying of liberalism and middle-class values since the 1960s and the culture wars that followed.
It is contended that character, like race, is a social and cultural construct. It is not grounded in science. Rather, character serves as a social score card of sorts, a crude, sometimes ugly, survey of what we think of others according to prevailing standards and values, some of which can be mean-spirited and maddeningly vague (e.g., he's a "bad" person). Character is part of our social fabric, permeating trials regardless of formal proof through the backdoors of demeanor and "background" evidence. It answers the essential question, "What kinds of people are involved here?"
Part I explores character's role in trials through 3 episodes, including one in which a prominent historian of science, also a juror in a murder case, excoriates the law's forlorn attempt to banish character from trials as "quixotic" and "perverse." Part II surveys current law, highlighting doctrinal ambiguity about "character" and leaks in the rules, especially "background" and demeanor, that permit character to operate sub rosa at trial.
Part III, the article's core, provides historical context. First, it contrasts the evolution of "character" from eighteenth-century conceptions of one's status in a hierarchical society to its central role in nineteenth-century liberalism, especially the ideals of "self-culture" and "balanced-character" that fueled the market economy and middle-class values. Second, as character evolved, so did its role at trial. Eighteenth-century trials were as much about determining character as in finding what happened. Paradoxically, while the nineteenth-century Victorians worshipped character development, they futilely attempted to lock it out of courtrooms as the modern trial was refashioned to curb juries' discretion in a search for "truth."
The Victorian model held together well into the twentieth century, when the social, political, and cultural disruptions of the 1960s and the later culture wars sharply challenged its brand of liberalism and middle-class values. (Part IV.) As the "Occupiers'" movement reminds us, today's polite academic disagreement over character's meaning reflect louder, messier conflicts over values; relegating character to science is not a solution, only a fruitless circumlocution. The article closes with some suggestions for embracing character as the crude social and cultural construct that it is, and always has been.