Teneille R. Brown (University of Utah - S.J. Quinney College of Law) has published "The Content of Our Characters" on SSRN. Here is the abstract:
In this article, I harness decades of research in philosophy, psychology and neuroscience to make the strongest argument yet for reforming the character evidence rules. Because the doctrine is so complicated, it is the most frequently litigated evidentiary issue as well as the most likely basis for reversal. Multiple studies demonstrate that the rule demands more of humans than we can possibly give, in part because it has become untethered from morality and the way jurors assess blame. It excludes conduct that is not likely to generate unfair inferences, while permitting many forms that do. The essence of the paper is this: morality drives character assessments; if the rule ignores this, then it is likely to be ignored. And the data are clear—we simply cannot *not* make character inferences. If we attempt to shield jurors from hearing about people’s past actions, they will rely solely on superficial racial, sex, and physical stereotypes to draw split-second inferences that are likely to be even more inaccurate and unfair. I therefore propose a new rule. My proposal creates a presumption against admissibility for immoral conduct only, which can be overcome if the evidence is substantially more probative than prejudicial. My proposal does not hinge on whether the evidence is used to draw propensity inferences, and thus will greatly reduce the widespread confusion this aspect of the rule generates. In addition to being more narrowly tailored and intellectually honest, my proposal better reflects how jurors automatically and subconsciously use evidence to predict how others will behave. In doing so, it re-anchors the character evidence inquiry to notions of probative value, prejudice, fairness, and morality, rather than to technical adherence to an incoherent rule.
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