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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 an 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.

A. Character Evidence and the Principle of Relevance

A surprisingly common explanation for the inadmissibility of character evidence rule is that the probative value of most character evidence is meager, practically non-existent, or vanishingly small. This is an inadequate explanation or justification for the character evidence rule.

1. The Question of the "Logical Relevance" of Character Evidence

Although the "meager probative force" theory is an inadequate rationale for the character evidence rule, the explanation for the inadequacy of this rationale cannot be grounded in contemporary legal definitions of "relevance." It is tempting to use contemporary legal definitions of "relevance" to challenge the meager probative force theory. This is because it is true that modern definitions of "relevance" such as the one given by Federal Evidence Rule 401 are extremely expansive -- they generally provide, in effect, that evidence is relevant if it has any probative force at all, regardless of how little -- and it is therefore also true that practically all character evidence, when measured against this enormously liberal standard, is "relevant." However, though this fact -- the almost indubitable fact of the "relevance" of character evidence -- may reveal a great deal about definitions of relevance such as those found in Federal Evidence Rule 401, it tells us little or nothing about the merits or demerits of the claim that character evidence is made inadmissible because of its meager probative value. For even if we conclude that character evidence is, "technically speaking," relevant, we are free to conclude that character evidence generally or always has a meager amount of probative force. The "literal" relevance of almost all character evidence says little or nothing about the sufficiency or insufficiency of the "meager probative value" rationale for the character evidence rule. The fact of the "relevance" of practically all character evidence speaks instead principally to the serious limitations of the much-vaunted "modern" theory of "logical relevance."

2. The Question of the "Legal Relevance" of Character Evidence

"The fact is that the average person is able to explain, and even predict, the behavior of persons with a facility and success that is remarkable." Paul M. Churchland, "Eliminative Materialism and the Propositional Attitudes," in P. Churchland, A Neurocomputational Perspective: The Nature of Mind and the Structure of Science 1, 2 (1989).

The true thrust of the "meager probative force" rationale is not that character evidence is "logically irrelevant," but that the probative force of character evidence is too meager to justify the costs associated with its admission. An earlier generation of scholars and legal professionals might well have said that character evidence is or ought to be inadmissible because it does not meet the standard of "legal relevance" -- that it ought to be inadmissible because it does not have more than the "bare minimum" of probative force that is required for admissibility.

There is one obvious but grave difficulty with this version of the "meager probative force" rationale for a prohibition against circumstantial character evidence: A considerable amount of character evidence has a substantial amount of probative value.

B. Undue Prejudice as a Result of "Sentiment"

The rule authorizing the exclusion of character evidence is sometimes rationalized as a special case of the general principle of "undue prejudice" -- the principle that evidence, including relevant evidence, may be excluded as unduly "prejudicial." One species of the undue prejudice notion focuses on the risk of "misdecision" that can be created by matters such as "sentiment," "emotion," and "passion." This sentiment-centered species of the prejudice principle has two distinct variants. The first variant focuses on the risk that jurors' emotions and passions will produce misdecision because of the tendency of emotion and its relatives {synonym?} to overwhelm or disable ordinary reason and judgment. The second variant emphasizes, not the risk that emotions will corrode or undermine the capacity of the jurors to reason, but the risk that the personal preferences of jurors -- their personal "sentiments" -- such as personal dislikes and hatreds -- will induce them to refuse to do what they believes they have been told that the law requires them to do with the evidence that they have been given.

1. The Sentiment That Overwhelms, Corrodes, and Disables Reason: Sentiment as Brute Emotion or Passion

The notion that the character evidence rule owes its existence to the tendency of jurors to let their emotions and passions cloud their assessment of evidence has been discussed at great length elsewhere. While I will not attempt to do justice to that vast body of literature, I do want to make it plain that I do not have much patience with the thesis that jurors' emotions tend to get the better of them. One difficulty with the power-of-brute-emotion justification for the character evidence rule is that a considerable portion of inadmissible character evidence is unlikely to arouse swells of emotion that are strong or durable enough to significantly impair the ability of triers of fact to remember and reason about evidence by the time that it retires to the jury room to deliberate; jurors generally have enough time to let their "brute" emotions subside before they must begin their deliberations.

Another difficulty is that much evidence that would be inadmissible character evidence if it were offered solely to show conduct in conformity with character is not barred by the character evidence rule if it is offered to show a matter other than conduct in conformity with propensity. For example, evidence of a prior safecracking, though not admissible to show the defendant's propensity to break into safes and steal money, may be admissible to show that the defendant had the ability to crack the safe that he is now on trial for having cracked and looted. If the tendency of evidence of character to arouse reason-clouding emotion were the true reason for the character evidence rule, evidence revelatory of character would be inadmissible regardless of the purpose for which it is offered.

A third difficulty with the prejudice as brute emotion theory is that the American character evidence ostensibly applies in bench trials as well as in jury trials.

The fourth difficulty is that it is rather unclear what a brute emotion is; it is not completely obvious that the emotions ordinarily provoked by courtroom evidence (as opposed to a matter such as a physical attack) can reasonably be characterized as "brute emotions," and it is not beyond doubt that the kinds of emotions that character evidence ordinarily evokes always or generally impede inferential performance. (It is even possible that "inflammatory" character evidence generally improves inferential performance -- because such emotion-arousing evidence, by definition, tends to engage the attention of the trier or triers of fact.)

2. The Sentiment that Subverts and Nullifies the Authority of Legal Reason and Rules: Sentiment as Personal Preference

There second variant of the "sentiment" rationale for the character evidence rule is quite different from the first. The notion that the sentiment or feelings evoked by character evidence can make jurors go astray does not always rest on the premise that character evidence has a tendency to make jurors go astray because of the tendency of character evidence to arouse emotions and passions that overwhelm or impair the ability of jurors to reason about evidence and facts.

The claim that the sentiment or feeling occasioned by character evidence has the capacity to lead a jury into error sometimes amounts to the claim that character evidence may lead jurors to decide to resolve the dispute on the basis of their personal preferences -- their "personal sentiments" -- instead of on the basis of the authoritative legal rules and principles that they have been told that they are required to follow. The concern in this situation may not be the fear that a jury's emotions and passions will lead a jury to take leave of its rational senses, but, rather, that character evidence will induce the jurors to concentrate on their own preferences, sentiments, or feelings and that the jurors' preoccupation with their own preferences may lead the jurors to decide -- perhaps quite calmly and without any throbbing passion or emotion -- to give effect to their own "personal" preferences rather than to the law's mandates and requirements. In short, the thesis that character evidence may lead to misdecision because of the "sentiment" and "emotion" that such evidence supposedly arouses sometimes may be tantamount to the thesis that character evidence, by making jurors focus on their own "sentiments" and preferences, will make it unacceptably likely that jurors will deliberately decide to do what they have been told not do.

This theory of the prejudicial character of character evidence does not depend on the supposition that character evidence has the capacity to impair the ability to jurors to reason and deliberate about evidence and facts. This theory instead rests on the premise that character evidence inclines jurors to use the wrong reason and the wrong set of preferences; this theory asserts that character evidence will lead jurors to substitute their preferences for the law's "preferences" -- not because jurors who are confronted with character evidence cannot reason in a competent fashion about evidence, but, rather, because jurors who are confronted with character evidence are likely to believe that their personal preferences are better than the law's preferences and are likely to give effect to their own preference rather than the law's supposedly mandatory and authoritative preferences.

The second variant of the sentiment-based rationale involves, in short, the alleged problem of "jury nullification." If it is at all appropriate to speak of juror passion or sentiment when there is juror misuse of evidence and facts because of juror or jury nullification, the kind of passion or sentiment involved may very well be a "bloodless" or "dispassionate" kind. This is because, by hypothesis, the reason for the jury's misdecision in such a situation is not rooted in the cloud that emotion throws over reason. The theory here is, in effect, that the jury decides or chooses to make improper use of the evidence before it.

That is the theory.

Does it hold water?

No.

There are two or three principal reasons for saying that the risk of jury nullification does not explain the character evidence rule. First, one might point to the fact that the character evidence rule is thought to apply in bench trials as well as in jury trials. Second, one might question the assumption that jurors are more prone than judges to engage in "nullification."

The third alleged infirmity of the nullification rationale is the most cogent: despite the existence of the character evidence rule, much evidence revelatory of character is considered admissible and is often admitted; evidence revelatory, or indicative, of character is admissible and often admitted if it is offered to show matters such as "intent," "opportunity," and other matters apart from "conduct in conformity with character." If it were really the case that evidence revelatory of character tends to make a jury ignore the law's preferences and substitute its own, this risk or tendency would exist when evidence indicative of character is admitted even for a "limited" and "non-character" purpose; that is, if the explanation for the character evidence rule is that there is a risk that the jury's knowledge of character inclines juries to nullify the law, one would think that this risk also exists when character is offered to show matters such as intent or opportunity. The nullification theory, therefore, may explain the discretionary power of the trial court to exclude relevant evidence on the ground of undue prejudice. But it does not explain the character evidence rule itself.

C. Prejudice Due to Misestimation and Exaggeration of the Probative Value of Character Evidence

Another possible rationale for the character evidence rule -- a rationale said to be championed by Wigmore -- is that jurors are particularly prone to give character evidence more weight than it deserves. I will refer to this as the juror-inflation-of-probative-value rationale for the character evidence rule -- or the "JIPV" rationale or theory, for short.

The JIPV rationale for the character evidence rule is not necessarily equivalent to the "corrosion-of-inferential-reasoning-capacity-due-to-emotion-and-passion" rationale described in Part I.B.1, supra. While it is true that passion may lead to the misestimation and exaggeration of the probative value of character -- because of the destructive effect that passion and emotion can have on the capacity of jurors to reason--, the JIPV rationale asserts that jurors, whether or not impassioned, are particularly prone to misestimate and overestimate the probative value of character evidence.

The JIPV thesis faces several difficulties. One difficulty is that some of the proponents of this thesis invoke the authority of Wigmore to support the proposition that jurors and juries just are not very good at assessing character evidence and have a special propensity to exaggerate the probative value of character. Wigmore himself rather clearly said that both judges and jurors tend to exaggerate the probative value of character evidence. So Wigmore embraced the JJIPV rationale for the character evidence rule -- judge-and-juror-inflation-of-probative-value (of character evidence) -- rather than the JIPV rationale -- juror-inflation-of-probative-value.

A second and more substantial difficulty with the JIPV theory is that the character evidence rule ostensibly applies in bench trials as well as in jury trials. But perhaps this is not a fatal difficulty because perhaps it is true, as some observers claim, that the character evidence rule, though nominally applicable in trials without a jury, is effectively relaxed -- and thereby eviscerated -- in bench trials. Although I am not fully convinced that the relaxation of the character evidence rule in bench trials amounts to its evisceration, it is not important that this particular question be resolved here and now. There is a more fundamental difficulty with the JIPV rationale, one that does not depend on the question of the extent of the relaxation of the character evidence rule in bench trials.

The third and most fundamental difficulty with the JIPV rationale is that the assumption that jurors are particularly prone to overestimate the probative value of character evidence is unwarranted. Stated differently, the fundamental difficulty with the JIPV theory is that there is no good reason to believe that a single judge, who is likely to be relatively isolated and separated from ordinary life and ordinary people by virtue of her professional education and professional position (a good many people seem to think that one of the implicit purposes of legal education is to make law students and lawyers less human and humane), -- there is no good reason to think that such an odd creature is to be better qualified than a jury of twelve, eight, or six people, drawn from a cross-section of the community and having a variety of backgrounds and experiences, to make sound inferences about the probative force of human character.

A substantial body of research in social science supports the view that jurors generally do an excellent job of assessing evidence. But although I take comfort in that literature, I do not rely on it. I just do not believe that judges generally are better triers of fact -- better judges of evidence and factual issues -- than jurors are. I believe that jurors -- particularly juries -- are better able to assess evidence. Any scientific evidence to the contrary would have to be compelling before I would be prepared to abandon my common sense judgment that a group of conscientious and ordinary people is particularly well-qualified to make judgments about the probative force about matters of common experience such as human character.

Having tendered my opinion on the question of the comparative competence of judges and juries in making judgments about the probative value of character evidence, I now want to concede that it is possible that by talking about the abilities of juries and jurors I am riding (and beating) the wrong horse. Perhaps the way to understand the IPV thesis -- the "inflation of probative value" thesis -- is not to read it as the JIPV thesis -- "juror-inflation-of-probative-value" thesis -- but (as Wigmore suggested) as the JJIPV thesis -- "judge-and-juror-inflation-of-probative-value" thesis -- or, alternatively, as the EIPV thesis -- the thesis that everyone does it. In short, perhaps the better (and more charitable) course is to ignore the frequent claims that judges are better than jurors at assessing character evidence and emphasize instead the more general thesis that everyone -- that includes judges as well as jurors -- has a tendency to exaggerate the probative value of character evidence.

Is it possible that this thesis -- the thesis that all human beings and all triers of fact, whether judges or jurors, tend to misestimate and exaggerate the probative value of character evidence -- explains the character evidence rule?

I think not.

There is good reason to be extremely suspicious of claims that all people -- or practically all people, in any event -- are incapable of judging the true value of character evidence. The thesis that both judges and jurors regularly exaggerate the value of character evidence is reminiscent of the Kahneman-Tversky thesis that ordinary people commit a large variety of inferential blunders and suffer from a wide variety of cognitive illusions. Perhaps this similarity should sound a note of caution. The Kahneman-Tversky thesis came out in a blaze of glory, and many people were apparently initially persuaded that the general thrust of the Kahneman-Tversky thesis -- if not its every detail -- was correct. Over time, however, a substantial number of informed observers have questioned the hypothesis that ordinary people tend to be inferential morons.

This Kahneman-Tversky type of thesis, when applied to the phenomenon of character evidence, quite naturally suggests a host of questions. One wonders, for example, how observers such as Wigmore -- who are themselves also only human -- knew that trial judges and jurors tend to make more out of character evidence than they should. Were the conclusions of such observers based on their impressions or observations of the actual use of character evidence in particular cases and controversies? If so, were observers such as Wigmore "well-positioned" to make judgments that particular trial judges or a particular juries in particular cases gave character evidence more weight than it was worth? Is it not likely that the trial judges and juries in any such cases had more detailed knowledge of the character evidence in the case and its larger evidentiary context than did observers such as Wigmore, whose knowledge of such evidence was probably based largely on second-hand and incomplete accounts such as appellate opinions and newspaper articles? Or did observers such as Wigmore instead rely on general assumptions about human nature and, in particular, on the assumption that people in general tend to misjudge the probative value of character evidence? If so, did observers such as Wigmore think that they themselves are a special case -- that they, unlike judges and jurors, know how much character evidence is really worth? Or did they instead simply assume that participants in cases and controversies -- participants such as trial judges and jurors -- are particularly prone to misjudge the value of character evidence? If that was the implicit assumption, was it correct? Why should non-partisan participants in trials -- participants such as trial judges and jurors -- have a special proclivity to inflate the probative value of character evidence?

Apart from these questions concerning the basis of common declarations about the alleged incapacity of judges and jurors to make sound judgments about the probative value of character evidence, one might wonder whether judges and jurors are incapable of self-correction -- that is, whether judges and jurors, if told or reminded that there is a danger of exaggerating the force of character evidence, would be unable or unwilling to take adequate steps to prevent themselves from exaggerating the significance of any character evidence that they might be allowed to see.

I am not convinced that there are satisfactory answers to such questions. But in my mind there is an even more fundamental difficulty with the EIPV thesis -- the thesis that (practically) everyone has a tendency to inflate the probative value of character evidence. The most fundamental difficulty with the EIPV thesis is that its underlying premise -- the generally weak probative force of character evidence -- is either false or an oversimplification.

This simple proposition devastates the EIPV thesis -- and the JIPV thesis as well. Once it is granted the that character evidence often has substantial probative value, everything changes. In particular, it becomes far more difficult to rationalize the character evidence rule on the ground that fact finders are prone to exaggerate the probative value of such evidence. Suppose that character evidence ordinarily has a substantial amount of probative value. Now consider whether it would still make sense to say that triers of fact tend to overestimate the value of probative evidence. The possibility that the proposition is true theoretically still exists: it is logically possible to exaggerate the probative value of extremely probative evidence. But if it is true that triers of fact are generally good at performing inferential tasks, there is little reason to credit the argument that triers of fact are particularly prone to overestimate the value of character evidence. The more plausible and parsimonious thesis is that when triers of fact accord character evidence substantial weight, they do so for good reason.

Why should we assume that most triers of fact jurors are inferential idiots?

There is no good reason to do so.

A. The Notion of Autonomy in General

Although the concept of human autonomy plays a prominent role in fields such as substantive criminal law, that concept rarely figures in discussions of the character evidence rule. In the course of a renowned discussion of the character evidence rule, however, Justice Benjamin N. Cardozo said, "In a real sense a defendant starts his life afresh when he stands before a jury a prisoner at the bar." This comment suggests, though it was probably not designed to assert, that the notion of autonomy has something to do with the character evidence rule. But, regardless of whether any American judge, law maker, or legal scholar has ever attempted to use the autonomy to justify or explain the character evidence rule, might it do so? This is the question I will discuss in this part of the paper. Before I do so, however, I need to make a distinction between two versions of the notion of autonomy and, thus, between two types of arguments based on the notion of autonomy.

The idea of human autonomy can be used in two very different ways in arguments that attempt to justify the character evidence rule by reference to that idea. One kind of argument appeals principally to the (supposed) fact of autonomy. The other kind of argument appeals principally to the (supposed) value of human autonomy. Arguments of the first kind of can be described as "practical" or "realistic." If used in defense of the character evidence rule, arguments of that sort would assert that the character evidence rule is necessary, useful, or appropriate because of the way that human beings actually work. Arguments of the second kind, by contrast, have a "prescriptive," "moral," or "normative" character. Arguments of this kind would defend the character evidence rule as necessary, useful, or appropriate, not because of the way that human beings supposedly actually work, but because of the way that we think human beings should work--or, more broadly, because of our aspirations about human behavior.

The bulk of this part of the paper discusses a "prescriptive" version of an autonomy-based argument for a prohibition against the use of evidence of character to show conduct. The very last section of this part of the paper has a very brief discussion of a "realistic" version of an autonomy-based argument in defense of the character evidence prohibition.

B. The Character Evidence Rule: An Appropriate Expression of the Ideal of Human Autonomy?

Roughly two hundred years ago Immanuel Kant argued (at great length) that the principle or ideal of human dignity requires that people be treated as autonomous creatures who are capable of determining their own actions. I will refer to this theory, from time to time, as the "VoA" theory -- the "value of autonomy" theory.

This VoA thesis of an intimate or necessary connection between dignity and autonomy still commands respect in a good many quarters. Let us suppose that this thesis or hypothesis also commands your respect and mine. Hence, let me assume for now that all of us assent to the following two propositions:

(i) human dignity is itself an ideal, value, or norm that the law is required to respect (and also, perhaps, "reinforce" and "support"), and

(ii) the ideal of human dignity requires that law and society treat human beings as autonomous and self-governing creatures.

Having established (somehow) the value of human autonomy, and having also established (somehow) the importance of having the law treat human beings as autonomous creatures, one might undertake to demonstrate that the character evidence rule is a necessary legal doctrine or, in any event, a useful or appropriate one. This argument would begin with the claim that the use of character evidence to show conduct -- the "circumstantial" use of character -- is inconsistent with the principle of autonomy because -- so the argument goes -- the circumstantial use of character implies that conduct is caused by character. The law, we might be reminded, is obligated to treat people as autonomous beings. If the law were to allow the use of character to show conduct, the law (so the argument would run) would effectively (and publicly) embrace the proposition that people's conduct can be caused, not by themselves, but by their character. Hence, the law should outlaw the use of character to show conduct because by doing so the law commits itself to the proposition that character does not cause conduct.

The "value of autonomy" argument for the character evidence rule that I have just described presupposes that the use of character evidence is incompatible with the morally-mandated (but possibly untrue) premise of human autonomy. This presupposition seems to depend on two further presuppositions, which are as follows:

(i) the use of character as evidence implies that character causes people to act the way that they do, and

(ii) people are not autonomous, or self-governing, if their character causes them to act the way that they do.

Now that we have the VoA theory before us, let us consider whether this theory holds water. Let us consider, in particular, three possible rejoinders to the argument that the use of character as evidence contravenes the morally-mandated premise or ideal of human autonomy -- and let us see what (if anything) these attacks, or rejoinders, tell us about the character of human character.

Rejoinder No. 1: Relevance and Causality: Relevance Does Not Imply Causation.

The VoA argument against character evidence implicitly but necessarily rests on the proposition that the relevance of character to behavior implies that character causes behavior. The VoA theory takes the position that society's approval of a rule making character evidence admissible effectively proclaims that society views human beings as automatons because a judgment or belief that character is a basis for predictions or inferences about behavior logically entails the judgment or belief that character determines or causes behavior.

The VoA theory as I have just described (and refined) it probably raises any number of issues and objections in your minds, but at this point I want to limit discussion to just one particular objection, or rejoinder, to the VoA argument in favor of the ban against character evidence. The rejoinder I have in mind directly attacks the proposition that any supposition of the relevance of character to behavior implies that character causes behavior; it maintains that the bare fact that character is a valid basis for inferences about behavior does not prove that character causes behavior.

This rejoinder, which questions the connection between relevance and causality, relies on the proposition that it is possible for an event or state of affairs to serve as a sign, indicator, or evidence of another event or state of affairs even if there is no causal connection or connections between the state or event that serves as a sign of another state or event and the state or event whose existence is suggested or shown by the state or event that serves as a sign. The proposition is, in other words, that a state of the world -- call this S1 -- may serve as a sign of another state of the world--call this S2 -- without also having to have a causal connection with that other state, S2.

It appears that the thesis that I have just described -- the thesis that relevance does not imply causation -- may have some bearing on the VoA thesis of a necessary conflict between circumstantial character evidence and the value or norm of human autonomy. For if it is in fact true that one "state of the world" can serve as a sign of another state of the world in the absence of any causal relationship between those two states, there appears to be a logical possibility that "character" can serve as evidence of "behavior" even if character has no causal relationship (either direct or indirect) with behavior. Thus, as applied to the phenomenon of character evidence, the first possible explanation for the inability of the VoA thesis to justify a legal prohibition against the "circumstantial" use of character evidence is that the ability to use character to predict or infer behavior does not necessarily imply that character has a causal connection to the behavior that it predicts or suggests.

I regret to say that the VoA argument for the prohibition against character evidence cannot be disposed of this easily. For if one undertakes a careful analysis of the thesis of the absence of any necessary connection between relevance and causality, one quickly reaches the conclusion that the question of whether there must be such a connection is far more complicated than the arguments sketched thus far suggest. For example, one can concede that an event serving as evidence can postdate the event for which it is evidence and yet insist that there must be a causal link between the event that serves as evidence and the event that it is thought to evidence. One might argue, for example, that the later event serves as evidence of the earlier event if and only if the later event is caused (directly or indirectly) by the earlier event. More generally, one might argue that any two events that have no causal connection can have, in the nature of things, only a coincidental connection and that a purely coincidental connection can never have -- in the nature of things -- any probative force because, if a connection between two or more events is purely coincidental, there is no reason to expect that connection to recur, to repeat itself.

A great deal more could be said (and a great deal more has been said) about the relationship between relevance and causality. Fortunately, however, this is not a question that needs to be resolved here and now. The rejoinder based on the possibility-of-relevance-without-causation seems to have a vicious failing in the present context: it seems to be immaterial to the VoA argument for the character evidence rule. This is because even if it is possible for evidence to be probative of a hypothesis in the absence of a causal connection between the evidence and the hypothesis, character evidence seems relevant and probative precisely because, only because, and only when there is a belief in the existence of some kind of a causal link between character and behavior. For example, we may think that character evidence is relevant because we think that a certain kind of character trait makes certain kind of behavior more probable. Hence, whatever may be said of other evidence of behavior -- that is, even if it some evidence may be relevant to behavior without having a causal connection with it--, the relevance of character evidence does seem to depend on our judgment or belief that character does have a causal link with behavior.

My analysis here has shown that the no-relevance-without-causation thesis is not a valid ground for rejecting a normative VoA rationale for the character evidence rule. But has it shown anything else? The answer is "yes." I have suggested that the relevance-is-possible-without-causation rejoinder to the VoA theory is might make an observer object that character has a causal connection with behavior. Hence, this hypothetical observer might reason along the following lines:

Well, if I am inclined to think that character evidence is relevant, it must follow that I also believe that character influences behavior. In any event, I believe that a person's character can influence that person's behavior and I can readily imagine situations in which I think character evidence is relevant precisely because and only because I believe that.

As I shall shortly show, my hypothetical observer exaggerates a little: it is not true that if one thinks that character and behavior are causally connected, one is compelled also to believe that character causes or influences behavior. Nonetheless, my hypothetical observer does make an important point: it is both possible and probable that character "causes" or influences behavior. This point, which is practically a truism, warrants special emphasis:

Rejoinder No. 2: Direct and Indirect Causation: If There Is a Causal Connection between Evidence and Hypothesis, the Connection between Evidence and Hypothesis (and between Character Evidence and the Human Conduct in Issue) Can Be Indirect.

Another possible rejoinder to the VoA rationale for the character evidence rule challenges the VoA theory's hypothesis that a belief in the relevance of character evidence logically implies or entails the belief that character causes or influences conduct. This attempted rebuttal maintains that even if one believes that all probative evidence ultimately relies on, points to, or presupposes a cause and effect relationship -- even if one believes, that is, that evidence has probative force only because it points to a cause and effect relationship --, it does not follow that if one makes the judgment that "character" is indicative of "behavior," one must reach the conclusion that "character" causes "behavior." It is possible that the causal connection between evidence such as "character" and a hypothesis such as "behavior" is indirect. Thus, even if there must be a causal connection between evidence and hypothesis, it is possible that the evidence is causally connected to some other variable, which may be a "hidden" or "omitted variable," which is in turn connected to the hypothesis or possible fact.

Thus, instead of Scenario 1 in Figure 1,

you might have Scenario 2 in Figure 2,

 

In Scenario 2, thus, the actor's character and his killing of V are thought to have a common cause, the actor's hatred of Blacks.

 There are possible scenarios in addition to those shown in Figures 1 and 2. For example, you might have the scenario (Scenario 3) depicted in Figure 3:

 

In Scenario 3 hatred of Blacks generates a propensity to kill, which generates the killing of V. In this scenario, however, character remains an immediate cause of the actor's behavior.

Another possibility is Scenario 4 in Figure 4.

 

In this (fantastic) scenario B, the actor's killing of V (a Black man), generates H, a hatred of Blacks in the breast of the actor, which in turn generates, or causes, C, a propensity to kill.

Scenarios 2 through 4 (in Figures 2 through 4 above) are meant to support the thesis that even if one assumes that there is a causal nexus between character and conduct, it does not follow that character causes behavior. But Scenarios 2 through 4 fail to do the job expected of them. Scebario 3, of course, misses the mark because in that scenario character remains a direct cause of behavior. Scenarios 4 and 2, however, also fail, but for somewhat different reasons. The trouble is that Scenario 4 proves too little while Scenario 2 proves too much.

Consider Scenario 4. This scenario suggests the possibility that character and hatred, instead of being the causes of the act or behavior in question, are the effects of the act. The trouble with this effort to bolster rejoinder number 2 is that Scenario 4 proves too little: a concession that Scenario 4 is possible falls short of showing that matters such as character and hatred cannot be causes of behavior rather than effects. Hence, Scenario 4 fails to undermine the basic foundation for the VoA argument that law and society must outlaw the use of character evidence. Scenario 4 merely requires a slight modification in the VoA thesis, which must now read: law and society must ignore human character when it is an antecedent cause, rather than an effect, of human behavior.

Now consider again the chain of reasoning depicted in Scenario 2 in Figure 2, where hatred H is the "immediate" cause of behavior, and where character C, along with behavior B, is one of the effects of the actor's hatred:

Scenario 2 does relieve the actor from the "tyranny" of having his behavior be caused or influenced by his character. But Scenario 2 substitutes the "causal tyranny" of character with another: the causal tyranny of hatred.38 Scenario 2 reveals that matters in addition to character can cause or influence human conduct. Thus, although Figure 2 depicts a situation in which a human actor's autonomy is not abridged by the influence or power of character C, Figure 2 doesnot depict a situation in which the actor is altogether free of causal influences or constraints; the actor in Scenario 2 remains subject to the influence of his own prior hatred H. It is therefore arguable that Scenario 2 proves too much. For if VoA theory is right in assuming that society must treat people as autonomous creatures and that society violates that obligation when it allows the use of evidence of matters that cause people to act the way they do, the situation depicted in Scenario 2 suggests that much evidence of human conduct that is now admissible -- matters such as prior emotions, desires, attitudes, wishes, and, even, physical circumstances -- would have to be made inadmissible when such matters are offered to show their influence on human behavior. In sum, Scenario 2 suggests that much evidence of human conduct that is presently admissible to show human conduct would have to be made inadmissible in order to protect the ideal of human autonomy in American law and in society.

The tendency of Scenario 2 to prove too much, however, does not necessarily prove that Scenario 2 is a defective basis for an attack on VoA theory. A a critique that "proves too much" is not necessarily a flawed critique. Sometimes such a critique instead serves to expose a flaw or weakness in the position being critiqued. In particular, the awkward consequences or implications suggested by Scenario 2 may amount to a reductio ad aburdum of VoA theory: the conclusions suggested by Scenario 2 about the amount and type of evidence that would have to be inadmissible if VoA theory were taken seriously and applied consistently may demonstrate that VoA theory is absurd.

An appeal to "unacceptable" consequences can make an argument or theory "absurd" in different ways. Do the implications of VoA theory for the admissibility or an inadmissibility of evidence of human conduct show that a VoA rationale for the character evidence rule must be rejected because the consequences of a VoA rationale -- the loss of a great deal of probative evidence of human conduct -- are just too great? Or do those implications of VoA theory for the process of proof in litigation demonstrate that there is a logical defect in VoA theory -- that VoA theory is, in some sense, incoherent, self-contradictory, or, literally, nonsense

The awkward implications of VoA theory for the admissibility of evidence of human conduct do not demonstrate that VoA theory is literally incoherent. But they do raise a serious question about the validity of the assumptions that VoA theory makes about the nature of autonomy. In particular, the awkward conclusion that evidence of matters such as hatred ought to be inadmissible suggests that there is a defect in the idea that human autonomy requires (absolute) freedom from causality. I will address this point next, in my discussion of rejoinder number 3. Before I do that, however, I want to reiterate and emphasize the central moral of this dicussion of Rejoinder 2 and Scenario 2:

If the ideal of autonomy -- in the sense of freedom from causal influence -- is one's dominant concern, it is very difficult to make a principled distinction between evidence of character, on the one hand, and evidence of many other matters -- such as emotions -- that can influence human conduct, on the other hand.

The importance of this moral reaches beyond the question of the validity of VoA theory because because it may prove to be difficult to distinguish between character and matters such as emotions and desires even if one has an entirely different explanation (one not based on autonomy) for the character evidence rule. I will have more to say about this point in Part III of this paper.

Rejoinder #3: Choice and Causality: Causality Is Not Incompatible with Autonomy

The most forceful rejoinder to the treat-people-as-autonomous theory -- the VoA rationale for the character evidence rule -- is that even if it is granted that matters such as "character" cause, or influence, "behavior," it does not necessarily follow that any particular instance of human behavior is not self-determined.

In the analysis thus far I have been tacitly assuming that "character" is an inherited bundle or traits or, in any event, a set of unchosen traits, characteristics, and dispositions. If, however, "character" is voluntarily assumed or chosen by the actor, then the cause of "behavior" is a chosen state of affairs, not an inherited one and it may be appropriate to say that the act "caused" by the actor's character is an act that was chosen by the actor self-chosen or self-determined action.

If "character," like "behavior," may be a consequence of an actor's free decision, you can have Scenario 5, which is structurally similar to Scenario 2:

 

In the situation depicted in Figure 5 a human choice or decision produces or creates a certain behavior, but it also literally creates "character." In this instance, the actor's character serves still serves as evidence of the actor's behavior, but only because it serves as evidence of a prior decision by the actor. Q.E.D.: the use of character to predict or infer behavior does not necessarily entail the conclusion that inherited or unchosen character alone determines, or predetermines, behavior.

There are two questions that one might ask about this attack on the foundations of VoA theory. First, is the attack sound? Second, does the attack suggest the existence of any features of human character that are important for our purpose -- the purpose, that is, of rethinking the character evidence rule?

The answer to the first question is, I think, uncertain. For example, the mere fact that an action can be "caused" by a human choice or decision is not a decisive demonstration that human beings have the ability to act autonomously in a world that is subject to causality. There is the complication, for example, that an actor's choice may itself be the effect of some antecedent event. Perhaps, for example, someone issued a threat T to the actor, saying kill Victim or I will shoot you. Consequently, we have the following situation:

Despite the existence of antecedent causes -- the existence, that is, of antecedent matters or events that influence human decisions and choices --, it is still possible that human beings have the capacity to act "autonomously." One might argue, for example, as G.W.F. Hegel did, that free choice is not synonymous with unconstrained choice and that the concept of autonomy, or freedom, is -- to use modern academic jargon -- incoherent in the absence of constraints or limitations. Hegel put it in the following way on one occasion:

My willing is not pure willing but the willing of something. A will which ... wills only the abstract universal, wills nothing and is therefore no will at all. the particular volition is a restriction, since the will, in order to be a will, must restrict itself in some way or other. The fact that the will wills something is restriction, negation.

(G.W.F Hegel, Philosophy of Right ¶6A, at 228 (T.M. Knob trans., 1952, Oxford U. Press paperback 1967).)

Alternatively, one might argue, as Glenn Shafer has -- but in a very different context and for a very different purpose --, that many of us are prone to misunderstand the concept of "causality." Some observers (not Shafer) have suggested that we are closer to having a correct understanding of causality if we think about causality less in terms of mechanical or material links or chains and more in terms of "influence." But perhaps we get yet closer to the mark, Shafer suggests, if we think of our pictures of temporal links and influences as experiments that both human bings and nature conduct with the world. We make a basic mistake, he suggests, when we transform the way we picture the world to ourselves into the world itself. Thus, if we have the experience of being free and making free choices, Shafer's argument implies (although little in his argument suggests that he himself has considered the precise question that I am wrestling with here), there is little or nothing in the bare notion of causality that forces us to think that we lack the ability to make our own choices.

Such issues about the "true" meaning of causality are both very interesting and very difficult. But I will not pursue them further here because I am, frankly, more interested in the second general question that I posed above. I have been playing a little bit of a trick on you. I am not greatly interested in the question of whether the ideal of autonomy can explain or justify a prohibition against the use of character to show conduct. Thinkers such as Kant, of course, took the "problem" of human autonomy very seriously. But I do not believe that legal scholars today -- except perhaps scholars of substantive criminal law -- worry nearly as much as Kant and some of his contemporaries did about the possibility that human beings are always mere automatons. I am interested in autonomy-based arguments, not primarily because of what they say about the possibility of human autonomy, but mainly because of what such arguments and what attacks on such arguments reveal about the character of human character.

The second general question I posed, you will recall, is whether Rejoinder No. 3 suggests something about human beings that is of importance for the project of rethinking the character evidence rule. The answer is "yes." The thesis of Rejoinder No. 3 is that character, rather than being the cause of behavior, may be the result or effect of an actor's decisions. The mere statement of this thesis -- whether the thesis be true or false -- suggests that human behavior may be the result (at least in part) of some kind of an internal decision making system, some sort of an operating system that is internal to human beings.

Rejoinder No. 3 questions the proposition that the hypothesized existence of a causal connection between character and conduct logically implies that people are unfree: Rejoinder No. 3 asserts that the mere fact of the inferential significance of character for conduct does not logically entail -- does not mandate -- the conclusion that human beings live in a prison-house of traits and attributes that they have merely inherited or otherwise acquired, willy-nilly, through no choice of their own. Whether or not this argument succeeds in disproving the thesis that a causal connection between character and conduct implies the unfreedom of human actors, Rejoinder No. 3 does suggest or, at least, evoke a very important proposition. The argument of Rejoinder No. 3 (unlike the argument of Rejoinder No. 2) shows that it is logically permissible to suppose that matters such as "choice" and "decision" can "cause" or influence behavior. This is a logical possibility because, as Figure 5 shows, it is logically permissible to believe that a phenomenon such as "character" serves as evidence of conduct because -- or, even, only because --"character" serves as sign or indicium of human "choice" or "decision." In other words, (i) it is logically permissible to suppose that "character" is "caused" by matters or events such as "choice" and "decision," and, (ii) that being so, it is logically possible to take "character" as evidence of some "choice" or "decision."

The observation that decisions can cause or influence actions is interesting for my purposes, not so much because of what it says about the possibility of human autonomy, but principally because of what it suggests about the likely "causes" or sources of human behavior and conduct. The underlying intuition of VoA theory is that "character" is an alien thing that can drive people to do things that they do not necessarily choose to do. The underlying intuition of the attack on VoA theory pictured in Figure No. 5 is that a person's "character" is not, somehow, alien to the person who has such-and-such a character, but that a person's character is in some sense his own. This way of thinking and talking, to be sure, does not explain in any clear way why character is or is not incompatible with human autonomy. But this way of thinking about character -- that is, thinking about character, as belonging to a person and being part of a person -- does suggest that the right way to begin to understand human character (either in general or the character of particular people) is by keeping in mind that a person's character is closely connected to that person's makeup.

The scenario depicted in Figure No. 5 suggests yet another important lesson about the character of character. Viewed from the perspective of that scenario -- the perspective, that is, of the supposition that human decisions can cause (or influence) both actions and character--, there is no necessary inconsistency between "character" and "autonomy." The consistency of behavior over time that the word "character" usually signifies can be viewed as the product of a pattern of choices, as a reflection of consistency of decisions. This is an important possibility because it suggests that character (like choice) may be the result of the logic (including thinking and feeling) that drives or moves or inclines people to make the decisions and choices that they do.

Let me describe the implications of Rejoinder No. 3 in a slightly different way. Rejoinder No. 3 serves as a reminder (though not as a demonstration) of an important general proposition about human beings and human behavior:

Human beings have some sort of an internal operating system that directs, regulates, or influences their behavior; they have within them some kind of a set or collection of rules, principles, and operations that affect how they behave.

One of my principal claims is that character evidence is inferentially interesting because evidence about character may generate knowledge about the "internal logic" or internal "operating system" of a human actor. Hence, for my purposes, the most important upshot of my analysis of the VoA theory is not so much the proposition that the internal logic that drives or directs human actors is a self-chosen logic as it is the (common sense) proposition that there is some sort of internal logic or mechanism that influences human behavior.

C. The Character Evidence Rule: An Appropriate Expression of the (Alleged) Fact of Human Autonomy?

If one is befuddled by the twists and turns that I have just described in the debates and discussions about the VoA rationale, one might try to cut through that tangle of arguments and counter-arguments by making the simple and straightforward assertion that the character evidence rule is warranted or required because people in fact start out afresh each day -- because people are in fact entirely different, or discontinuous, entities from day to day. This gambit attempts to replace the VoA rationale -- the "value of autonomy" rationale -- with an FoA rationale -- with a "fact of autonomy" rationale.

As bold as it is, the FoA gambit for avoiding the twists and turns of arguments about the VoA rationale does not wash. This is so despite the existence of a substantial body of philosophical literature that seems to question the proposition that there exist individual human entities that persist over time. This philosophical literature notwithstanding, it is simply indubitable that there is a significant degree of continuity in the behavior of most human actors over time. The real question is not whether that is so. The question is, instead, what, if anything, the law -- and, in particular, the law of evidence -- should make of such continuity in the characteristics and behavior of human beings. What is clear, I think, is that it cannot be said that, because human beings are "spontaneous" or "autonomous," the behavior of a human actor on one occasion is never relevant to that same actor's behavior on another occasion. There is something wrong with any notion of human autonomy or spontaneity that suggests such a patently ludicrous conclusion.

The practice of using information about the human psyche as evidence in criminal trials has a long pedigree in America. Long before legal scholars of evidence generally acknowledged the practice, trial lawyers have been in the habit of using closing arguments to tell stories about the motivations, beliefs, superstitions, delusions, phobias, fears, hopes, ambitions, political beliefs, aspirations, religious convictions, pretensions, vanity, self-loathing, resentments, hatreds, affections, infatuations, moods, depressions, grief, sorrows, bereavement, and other attitudes, thoughts, and feelings of the people whose conduct may have played a part in shaping the events and actions in issue at trial. In short, American trial lawyers have been exploring and discussing human character in their closing arguments for many years.

Dissection of the human psyche in the courtroom is not confined to the closing argument. It also takes place during the process of proof -- in particular, in and through the submission of evidence that "technically speaking" does not contravene the character evidence rule. For example, without resorting to any exceptions to the character evidence rule, courts have allowed parties to try to show the doing or non-doing of a specific act by showing a person's

•evidence of an intent to deceive

•greed

•jealousy and greed

•obsession with sex

•interest in explosives

•desire to take revenge on a "snitch" (as well as evidence suggesting that the defendant "was not just blowing off steam," and evidence for the purpose of "filling in the picture of [the defendant] as a man who was not well disposed to those who snitched on him, who threatened others verbally and physically, and who carried out his threats"),

•antipathy toward Roman Catholic priests

•motivations and beliefs of gang members, including their loyalty to a gang and its hierarchy and their willingness to use violence to defend their gang.

In one sensational case, prosecutors argued against severance of fraud and murder charges for trial in the following way:

Desperate and deeply in debt, Craig Rabinowitz had a choice: Confess his deceitful double life to friends and family--or kill his wife to collect on a $2 million life insurance policy.

Telling all would mean disgrace and a life of shambles. Killing Stefanie Rabinowitz meant no more debt and the chance to fulfill a fantasy--with Summer, the topless dancer of his dreams.

When it came time to be a man, prosecutors say, Craig Rabinowitz became a murderer.

"Rabinowitz chose murder and deceit over coming clean to those around him," writes Montgomery County Prosecutor Bruce L. Castor Jr. in a brief filed Monday in Norristown, Pa.

"He simply could not bear the thought of being found out. ..."

...

Castor argues that Rabinowitz's fraud case helps establish the motive, premeditation and malice of the murder.

(The Washington Post p. A15 (August 27, 1997).)

In a number of cases courts have sanctioned the use of evidence to show a person's mental or psychic world even though the evidence harbors information about the defendants' racial, political, or religious beliefs.

Examples of such admissible evidence about people's mental and emotional worlds -- offered to show human behavior -- could be easily multiplied.

The principal doctrinal "handle" for the admissibility of evidence of people's psyches -- their mental and emotional states or "worlds" -- is the principle that the use of "motive" to show conduct does not contravene the character evidence rule -- because -- according to the standard learning -- motive is not character. Sometimes evidence about the human psyche is admitted under the analogous principle that matters the use of matters such as "design" and "plan" and "intent" to show conduct does not contravene the character evidence rule -- because matters such as "design" and not "character." But, whether or not matters such as "greed," "jealousy," and "hatred" technically -- legally speaking -- amount to "character" or "disposition," evidence of such matters does create -- and is intended to create -- a picture of the mental and emotional world, or makeup, of a person.

Whatever the character evidence rule may mean today, it does not mean that it is impermissible to use evidence to paint a picture of person's psyche, his beliefs, his thinking, his aspirations, and the like in order to show that the person did or did not act in a particular way on a particular occasion. There is no meaningful sense (except in a "technical" and arid legal sense) in which it can be said that the law prohibits the use of evidence of a person's "character" to show conduct. A person's way of thinking, his aspirations, and similar matters are part of a person's "character." Vast amounts of evidence about human character are routinely admitted under existing law -- without the benefit of any "exception" to the character evidence rule. It is true that the existing character evidence rule is not wholly a paper tiger: the rule does bar the admission of some character evidence. But inadmissible character evidence is a small island in a vast sea of admissible character evidence.

Recognition of the widespread admissibility of character evidence under existing law may not make the riddle of the character evidence rule more tractable. But an awareness of the widespread admissibility of character evidence does change the thrust of the riddle of the character evidence rule. The issue is not whether character evidence should be made admissible. Much character evidence is already admissible. The issue, in general, is whether the current "straddle" between admissible and inadmissible character evidence is the right one.

Law is -- at least in part -- a practical discipline and also -- at least in part -- an expression of (relatively) contemporary cultural and social beliefs and prejudices. It is therefore not surprising that the law often falls prey to popular but shallow conceptions of man/woman and his/her relationship to the cosmos. The conception of character that law makers, courts, and legal commentators have seemingly embraced in their discussions of the character evidence rule is a good example of the influence of intellectual fads and fashions on the law.

American legal discourse about the character evidence rule -- judicial opinions, commentaries of legal scholars, and debates and discussions of lawmakers and codifiers -- uniformly tends to portray "character" as little more than a fortuitous aggregation -- a slapdash collage -- of traits and dispositions. For example, speaking of the difference between character and methods of proving character, Wigmore -- the dean of all Evidence scholars, said, "Character ... is to be considered ... as the actual moral or physical disposition or sum of traits ...." In the same vein, Wigmore equated "character or disposition" with "a fixed trait or the sum of traits." Many other courts and legal scholars have spoken in a similar fashion about "character."

Wigmore clearly deserves our respect. He was a man of monumental intellectual and scholarly accomplishments. But his way of talking about human character reflects a shallow and inadequate conception of human character.

The notion that character is an accidental aggregation of attributes and propensities is nonsense. Human character is not merely a fortuitous collection of attributes and traits.

What are the historical origins of the notion that character consists of an adventitious aggregation or fortuitous bundle of "traits"? How did such a transparently shallow conception of human character manage to achieve a dominant position in American legal discourse about the character evidence rule? Although other scholars have discussed the origins and the history of character evidence rule, I cannot offer an authoritative answer to these questions. Nonetheless, I think I am justified in saying that the notion of character as a bundle of traits has the feel and the smell of nineteenth century British empiricism. The notion that human character consists of a bundle of traits and dispositions reeks, in particular, of David Hume's philosophy.

From a Humean perspective on (wo)man and the cosmos -- that is, from a standpoint that is nominalist as well as empiricist -- human knowledge consists of perceptions or -- if one is not too starkly nominalist -- it consists of human experiences of sensory events. The acquisition of knowledge, therefore, involves discerning continuities and patterns in perceptions or in human experience of sensory events. Since we are nominalists -- which means that we believe we know only what lies at the surface of our experience, not what lies underneath them, behind them, or outside of them --, these patterns in perceptions and sensory events are, as far as we know, "accidental" or "fortuitous": we cannot say, for example, that because events of type a characteristically or typically seem to precede events of type b, that instances of a cause instances of b. We can only say that we have had perceptions or sensory experiences of instances of b following our perceptions or sensory experiences of instances of a. We only know our sensory experiences. We do not know and we cannot know what causes them or underlies them. This is, roughly speaking, the Humean view of the cosmos and of man's knowledge of the cosmos.

From a Humean point of view, the limitations on human knowledge of the cosmos also apply to human knowledge of the self. (Human selves are part of the cosmos.) Hence, in observing our selves (including the selves of other persons) all that we can say (if we can say anything at all) about human selves is that in our selves (so to speak) we have observed certain patterns or sequences of sensory events (or, more precisely stated, certain sequences of perceptions, sensory experiences, or sensory states). All that we can say about those perceived patterns in the states of our human selves is that we have experienced their occurrence. Hence, we are not justified in saying, for example, that "anger" causes "hitting" merely because we have seen, in the past, in our selves (or in some particular self) that "hitting" has always or usually followed "anger." The best that we can say -- and, really, all that we can say -- is that we believe, based on our past observations, that there are certain patterns or tendencies in our selves -- in the (states of the) selves that we have observed. This nominalist and empiricist way of thinking about the self is very reminiscent of the way that the way that literature in law of evidence describes human character -- as a set of dispositions or traits that people just happen to have.

A Humean account of the self is no more persuasive than is a Humean account of the cosmos. Like the Humean account of the cosmos, the Humean account of the self provides no adequate explanation of our right or ability, on the basis of our past observations and perceptions, to make judgments or predictions about the probable state of some event or condition -- in this situation, the probable state of the self -- on an occasion or occasions that we have not already observed, perceived, or experienced. We cannot look behind our experiences (in this case, our experiences, or observations, of human selves) to make a reasoned or considered judgment about the probability that a past pattern of events or behavior will recur. In a Humean world we cannot make judgments about the probable causes of or reasons for the actions of a self. In a Humean world we can only say that a self has had a tendency, or a seeming tendency or disposition, to act in a certain way. Though Hume may have believed the contrary -- Hume is, after all, generally regarded by statisticians as the paterfamilias of modern statistical theory --, a Humean way of looking at the cosmos and human selves affords no basis for making any judgments about the probable state of unobserved events and conditions -- whether those events and conditions are in the cosmos or whether they are unobserved or unknown states of human selves and human beings.

Hume's way of thinking about the world, about (wo)man's knowledge of the world, and about (wo)man himself (herself) is not coherent. This was apparent even to some observers in Hume's own era. Hume's best-known nearly-contemporary challenger was Immanuel Kant. Kant, who had Hume in mind, made the argument long ago that the notion of an entity that we call a "person" is inexplicable unless there is something more to a person than just the sense data and perceptions that, so to speak, flow into or through a person. We cannot pursue the details of Kant's argument here. Suffice it to say that Kant saw human beings as constructive, creative, or constitutive entities who impose an order on the world that they experience. In Kant's schema human beings in an important sense are the principles -- they consist of the principles -- by which and through which they organize and constitute their experiences and perceptions.

This general idea -- the idea that the very existence and identity of a "person" implies that human beings are entities who are both governed and constituted certain ordering principles; the idea that it is the existence of such a set of internal principles governing human beings that makes it possible to say or think that a person exists--, this general idea is a very old one. The idea is -- at the very least -- implicit in Plato's Republic. The same general idea is explicit in Aristotle's philosophy: it appears, for example, in Aristotle's elaboration of his conception of the human animal and its psyche.

Aristotle discussed the nature of the human psyche most fully in De Anima. Although De Anima may be best known for Aristotle's insistence that the "soul" -- the human psyche -- cannot exist apart from the body, the most important part of Aristotle's argument for our purposes is his claim that human beings have "organized" bodies and that human bodies (and other bodies) are "naturally organized." Aristotle, De Anima 412a line 29 - 412b line 6. A naturally-organized body is a body that has the ability to organize itself. Id. at 412b lines 17-19.

The thesis that human beings (and other natural creatures) are self-organizing and self-regulating organisms was one of Aristotle's greatest contributions to Western thought and civilization. Aristotle's notion of "organism" has been enormously influential. Furthermore, despite its antiquity, Aristotle's view of the nature of the "animating principle" of a natural organism remains important today. Aristotle's notion of self-organizing organisms has a close affinity with contemporary cutting-edge research and theorizing about matters such as human intelligence.

Let us begin, as one so often does, with Aristotle. Aristotle's De Anima is often considered (rightly, I believe) the first work on psychology--indeed, it virtually gives the subject its name. But is Aristotle's subject, the psyche, to be identified with what we would call the mind? (Psyche is often translated "soul," so we could also ask whether the psyche is to be identified with what we call--or have called--the soul.

The answer ... is no. Aristotle's psyche is the "form," or I would say the organization to function, of the whole organized living body. ... If the Aristotelian psyche corresponds to any contemporary notion it is to the extremely up-to-date notion of "our functional organization," ... not to the present popular notion of the mind.

(Hillary Putnam, "How Old Is the Mind?," Words and Life 3-4 (James Conant, ed., 1995).)

The notion that human creatures have an internal system of rules, principles, procedures, or operations that regulates, directs, or organizes their behavior and activity now has practically the status of a truism in a wide variety of disciplines. The task of research in fields such as cognitive science and neuroscience, it is generally thought, is not to determine whether or not such an internal operating system exists -- whether some such set of self-organizing or self-animating rules, principles, or operations does or does not exist -- but, rather, to determine the characteristics and attributes of the principles or operating systems by which animate organisms such as human beings regulate, control, and influence their activity.

The idea that organisms "exist" and that they have the capacity to regulate or direct their behavior has little or nothing to do with the notion of a disembodied soul, an entity that is viewed as being somehow separate from "matter," "material," or something of the sort. As I have already noted, Aristotle himself did not make that mistake. Aristotle thought of "soul" or "psyche" as a kind of quality or attribute of the things that we call organisms. The Aristotelian view that the human psyche consists of a kind of indwelling logic or reason may have seemed "quaint" for a time. But if that was ever the case, it is no longer the case. Today -- in the day and age of the computer -- theorists routinely assert or assume that it is not possible to describe the human organism without describing its internal structure -- including -- or especially including -- the logic of its internal parts and workings and operations.

Today it is common to hear it said that it is impossible to understand the workings of the brain simply by grasping the physical material out of which the brain is made; one must instead understand, it is often said, the functional architecture of the brain -- how the arrangement and relationship of the various material parts of the brain serve to make or allow the brain to perform certain operations or follow certain orderly and ordered procedures or logical patterns. Although the claims and hopes of some of the early proponents of "artificial intelligence" were inflated, it is not entirely illegitimate to analogize human character to a computer's "operating system." How a computer -- and a person -- acts or behaves depends, of course, in part on the material ingredients -- nuts, bolts, hands, eyes, teeth, wires, and so on -- of which that computer or person is composed. But neither the behavior of a computer nor the behavior of a person can be described solely by describing that computer's or person's material or physical "parts." Moreover, it would be ludicrous to try to describe the behavior of a computer by attempting to describe its "propensities," "inclinations," or "tendencies." The only truly informative description of the behavior of a computer is one that describes the logic by which the computer operates -- the description that captures the computer's "operating system." The same is almost certainly true of descriptions of the behavior of people.

It is ordinarily not possible to make good guesses about what people are likely to do simply by describing their tendencies or dispositions; to make good guesses about human conduct, it is ordinarily necessary to describe the principles and the logic that govern the conduct of the people whose behavior we are trying to infer. The only reason that a description of a person's dispositions or tendencies ever works -- the only reason that such a description ever "says" anything about a person's likely behavior -- is that either the person providing the description or the person receiving it implicitly provides or infers the rules and operations that "cause" the described disposition or tendency. There must be some rule or principle or set of rules or principles that "generates" the disposition. Otherwise there is no basis for making judgments about when -- under what circumstances -- the disposition in question might swing into action. A disposition or patterns of behavior is often (though not always) a reflection or expression of a set of internal principles and operations.

In the course of this discussion of the nature of human character I have mentioned Aristotle and other "worthies." I do not invoke such worthies, however, in order to "prove" that human beings are self-organizing beings who have an internal structure or logic that influences and directs their behavior. I mention such eminent philosophers, theorists, and scientists principally to give solace and reassurance to any people who may wonder if they should trust their own intuitions and common sense judgments about the character of human character. Our intuitions and common sense tell us that there is within each one of us some set of principles and operations -- some kind of a structure or "logic" -- that influences how we behave. There is no good reason for anyone to doubt the soundness of such intuitions.

In April of 1997 the New York Times carried a report by Linda Greenhouse on oral arguments before the Supreme Court in Bracy v. Gramley, No. 96-6133. ("Justices Consider How the Taint of a Corrupt Judge Should Be Measured and Remedied," New York Times, Section A, Page 18; Column 1 (Late edition, April 15, 1997).) This case involved a Chicago judge -- Thomas Maloney -- who took bribes from defendants in murder cases. Judge Maloney presided at William Bracy's murder trial. Bracy did not have the imagination or the guile to offer Judge Maloney a bribe. Whether coincidentally or not, Bracy was convicted and sentenced to death. After Judge Maloney's defalcations became known -- Maloney was eventually convicted of taking bribes --, Bracy sought to overturn his conviction. The case eventually made its way to the Supreme Court. The issue before the Supreme Court was whether Bracy had the right to conduct discovery for the purpose of trying to show that he had been denied the right to a fair trial before an impartial judge.

Greenhouse reported that Bracy argued "the trial was fundamentally unfair because there is a substantial possibility that Judge Maloney was unduly harsh in the non-bribe cases to deflect attention from his leniency in the others." Greenhouse also reported that during oral argument before the Supreme Court Bracy's lawyer asserted that "Judge Maloney was motivated to make sure that defendants in cases in which he did not take bribes were convicted, to balance the cases in which he traded leniency for money." However, "Justice Scalia said he thought it just as likely that rather than punishing those who did not pay bribes, a judge taking bribes to favor some defendants would be lenient in other cases as well to avoid calling attention to his behavior." Greenhouse quoted Scalia as saying, "[Maloney] would look worse if he were a hanging judge in most cases and a bleeding heart in some."

The contrasting views of Bracy and Scalia about how Judge Maloney might have reasoned about his treatment of defendants who failed to pay bribes are a good illustration of my thesis about the relevance and probative force of the "internal operating systems" of human beings on the question of their conduct on particular occasions. Bracy and Scalia disagreed about how Judge Maloney probably thought and felt about the risk of detection. But Bracy and Scalia both implicitly agreed that how Judge Maloney actual thoughts and feelings about the risk of detection must have influenced Maloney's treatment of defendants did not pay bribes. Bracy's reading of Judge Maloney's "internal operating system" supported one hypothesis about Maloney's probable treatment of Bracy while Scalia's musings during oral argument about Judge Maloney's thoughts and feelings more strongly supported a rather different hypothesis about Maloney's behavior at Bracy's trial. But Bracy and Scalia both assumed that the nature of Maloney's thinking was pertinent to the question of how Maloney acted at Bracy's trial. They were entirely right in making that assumption.

I have argued that the current character evidence rule is an unstable halfway house between (i) a legal regime that altogether prohibits the use of character to show the doing of an act and (ii) a system of proof rules that operates on the premise that a person's mental and emotional makeup is a powerful indicator of behavior which the law cannot afford to abandon. Nonetheless, it is premature to assert that the law should now abandon the remnants of the prohibition against the use of human character to show conduct. It is true, I think, that the prohibition against circumstantial character evidence is more fiction than fact. It is also true, I think, that the character evidence rule, as porous as it already is, is gradually becoming yet more porous. It is even possible that character evidence rule is headed toward oblivion. Nonetheless, I am not yet sure that oblivion is where I want the character evidence rule to go. This is only partly because I recognize the justice in the observation that the incoherence of the character evidence rule is an insufficient justification for abolishing the rule. We need to pause before performing radical surgery on the remnants of the character evidence rule because the use of character evidence presents risks that have not yet been adequately studied. I have made it clear that I think that the standard justifications for a prohibition against circumstantial character evidence are unconvincing. Nonetheless, the use of character evidence may be dangerous or unwise for other reasons.

If it is true that human character is the animating spirit or operating system of a human organism, there are two or three features of human character that suggest that the use of character evidence in adjudication is problematic. The first is the complexity of the internal system of rules and principles that regulate human conduct. The second is the deep and tacit nature of many of the internal principles and operations that regulate the behavior of human beings.

The complexity of the human operating system raises some obvious questions. The first question is whether the complexity of human character generally or necessarily renders partial or fragmentary information about human character entirely or largely worthless. The second question is whether the amount of evidentiary detail that is necessary to do justice to the complexity of human character is so great that it is unaffordable.

The tacit nature of much human character and of much knowledge of human character presents an additional array of issues. The first question is whether it is possible, in the courtroom, to generate the kind of tacit (but genuine) knowledge of character that people sometimes attain as a result of their ordinary interactions with people such as family members and friends. My view is that this is almost certainly not possible.

If I am right about the improbability of significant tacit learning by the trier of fact about the character of witnesses and parties on the basis of the trier's observations of the courtroom behavior of witnesses and parties, the next question is whether it is possible, in principle, for a trier of fact to acquire meaningful information about an internal operating system whose operations are so tacit and deep that the person in whom that operating system resides may himself not have a very good understanding of its nature. Can reliable or useful character evidence be generated in a formal judicial setting such as a trial in which parties, witnesses, and triers do not act or interact "naturally"?

It is possible that the answer to this second set of questions is "yes." In particular, it is possible that the trier of fact can acquire significant knowledge about the character of witnesses and parties the way a biographer does -- by acquiring and studying large collections of details about the people whose character and behavior are in question. Suppose that this is so. The tacit, or submerged, nature of human character may then join forces with the complexity of human character to present a third riddle about the value of character evidence.

The American system of litigation and proof is both contentious and adversarial. One astute scholar felicitously refers to this system as a "super-adversary system." Is it possible and probable that large amounts of character evidence -- such as detailed life histories -- are peculiarly and excessively susceptible to manipulation and distortion in an adversary and contentious system of litigation and proof such as ours? Is it possible that our system of litigation and proof is so contentious and so coarse, and the human internal operating system so complex and submerged, that it just is not possible for our system of litigation and proof to produce reliable verdicts about a matter so subtle and complex as human character? In short, is it the case that large amounts of character evidence -- detailed personal histories, for example -- are peculiarly susceptible to manipulation and that in our adversary and contentious system of proof otherwise nuanced evidence of human character -- evidence, that is, of the complex internal operating system that we call human character -- would surely be corrupted and degraded and that the necessary nuances about character would be obliterated in the heat of courtroom warfare? This is a question that requires further study and investigation.

There is one last major question that the tacit nature of human character and the complexity of character suggest. It bears repeating that human character is elusive as well as complex. That is in part because character is deep within each one of us; that is, there are many components of character that are hidden from the immediate view of strangers and even of ourselves. This suggests a question of the utmost importance: Is it the case that meaningful -- that is, detailed -- evidence of character must peer so deeply into the human heart and soul, into the inner recesses of the mind and soul, that such evidence ought to be regarded as so demeaning and degrading that such evidence ought to be prohibited for that reason alone? There are obvious differences between the nightmarish sort of inquisition portrayed in Arthur Koestler's Darkness at Noon (Daphne Hardy, trans., 1941) and the sort of "inquisition" that would occur if parties in American trials were allowed to submit detailed life histories of witnesses, parties, and other actors. Nonetheless, serious attention needs to be given to the possibility that the mere use in litigation of some kinds of character evidence might so expose the inner recesses of people's hearts and souls to public view that the use of such evidence should be prohibited -- perhaps by the "character evidence rule."