What Is Wrong with Character Evidence?

33 Pages Posted: 13 Apr 2005  

Peter Tillers

Yeshiva University - Benjamin N. Cardozo School of Law


The rule barring the use of character to show conduct - the character evidence rule - has undergone significant erosion in recent years. The rule has also been subjected to withering criticism in recent years. But the character evidence rule - the rule barring the circumstantial use of character - is not yet dead. Moreover, the character evidence rule still has many defenders. (Indeed, in the legal community the rule's defenders seem to outnumber its critics.)

What is the future of the character evidence rule?

It is becoming increasingly apparent that the standard explanations and justifications for the character evidence rule are inadequate. This suggests that the character evidence rule may become a dodo. But it is premature to celebrate or mourn the death of the character evidence rule. One prominent observer - John Langbein - takes the position that rules of evidence are particularly hardy weeds that manage to survive even when is no good reason for their continued existence. But even if one's view of the law of evidence is not as caustic as Langbein's, it may be too soon to dance on the grave of the character evidence rule: even if good reasons for the character evidence rule are not apparent, they may nevertheless exist. Hence, this essay is not attempt either to defend the character rule or to demolish it. It is, instead, an effort to rethink the character evidence rule and the possible reasons for its existence.

I begin this essay by explaining why several common explanations for the character evidence rule do not work. I then consider the possibility that circumstantial character evidence is incompatible with the idea or ideal of human autonomy. After rejecting this possibility (but drawing some inspiration from it), I explain why it is incorrect to say that evidence of human character is generally inadmissible in adjudication to show human conduct. Part IV of this paper develops my thesis that the conception of character as a bundle of traits is inadequate and that it is far better to think of character as the animating spirit or the internal operating system of a human organism. In the conclusion to this paper (Part V) I make some general observations about the character evidence rule.

In this paper I take no position on the question of whether the character evidence rule is, on the whole, a good thing or a bad thing. Instead, I describe some of the questions that need to be addressed before any radical surgery is performed on the character evidence rule. These are questions that surface if one conceives of character, not as a bundle of traits, but as the internal operating system, or animating spirit, of the human organism. The general theme of my essay is that a true understanding of the character evidence rule is impossible without a true understanding of the character of human character.

Suggested Citation

Tillers, Peter, What Is Wrong with Character Evidence?. Hastings Law Journal, Vol. 49, p. 781, 1998. Available at SSRN: https://ssrn.com/abstract=692623

Peter Tillers (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
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