Legitimizing Character Evidence
62 Pages Posted: 13 Sep 2018
Date Written: September 3, 2018
For over a century, the consensus among legal commentators is that character evidence—when used to show that an individual behaved in accordance with her predisposition to commit some act—is an illegitimate form of fact-finding proof. This consensus is codified in the Federal Rules of Evidence, which forbids the use of most “propensity evidence” at trial. Defenders of the ban suggest, without empirical proof, that jurors would overvalue the probative worth of propensity evidence and that the public would balk at the inclusion of such evidence as a matter of legal procedure. This Article suggests that this view is misguided, its assumptions are incorrect, and policymakers should consider lifting the ban on propensity evidence.
This Article reports the results of three original experiments, which examine the conditions under which the public is willing to legitimize legal verdicts that rely on propensity evidence. The psychological literature suggests that two elements must be satisfied for the public to legitimize an evidentiary rule: (1) the public must perceive the rule as promoting decisional accuracy, such that it increases the likelihood that the fact finder reaches the correct verdict, and (2) the rule must promote “procedural justice,” such that people believe that the fact finder has reached its decision according to notions of fair play. Social psychology research on “person perception” suggests that jurors might be more competent to evaluate character evidence than legal commentators believe, and research on procedural justice suggests that the inclusion of propensity evidence may increase the popular legitimacy of legal verdicts.
These experiments, which surveyed over 1,200 participants, support the position that propensity evidence is a legitimate form of trial proof. They suggest that jurors attend to propensity evidence when it is presented to them, but they afford such evidence significantly less weight than they do most other evidence at trial. Moreover, jurors demonstrate marked competency with propensity evidence: they discriminate between potential accuracy-enhancing and accuracy-diminishing features of such evidence, including the frequency of the defendant’s behavior, the duration of the acts, and the similarity of those acts to the act of which the defendant is accused. Finally, these studies suggest that propensity evidence increases—not decreases—the public’s perceptions of procedural fairness at trial. These findings have substantial implications for evidential policy and for attorneys who make ground-level decisions regarding the use of character evidence.
Keywords: evidence, courts, psychology, empirical study
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