Document Type


Publication Date



“Character” is a difficult concept to define, as Chief Justice Montgomery discovered. It seems intuitive that individuals have characters and that these characters influence the way people behave; that character is a person’s “propensity,” “disposition,” “proclivity,” or “tendency” to act in certain ways in certain situations. Well known examples of character traits include “honesty,” “violence,” “temperance,” and “cruelty,” as well as their opposites (among countless others). Evidence of character traits is heavily regulated in trial because proof of these propensities—that a defendant or witness has general tendencies to behave in either “good” or “bad” ways according to their character traits—can have enormous consequences on trial outcomes. This is especially true in criminal prosecutions, where character can be a life-or-death matter for criminal defendants. Yet even with the high stakes riding on determinations of what is and is not character, there is still “no general agreement about the precise meaning of the term [character].” And there is reason to believe that, because of this lack of an articulated standard, courts have been getting the answers wrong.

The law of evidence considers character proof to be especially dangerous but still relevant and has therefore developed special mechanisms to permit and restrict its use. Few would call these mechanisms rational, but they exist to guide courts in mediating the influence of character evidence in trials. Under this current structure, courts must juggle two competing considerations: relevance and prejudice. However, too often courts lose sight of these fundamental pieces as they evaluate whether or not a given trait is, in fact, character. Such a wooden application of meaningless definitions of character could result in juries being exposed to the very character evidence the law was designed to exclude from trial. Courts require a clear, reasoned standard for identifying “character” when it comes before them to ensure a consistent, predictable, and rational application of the law of evidence. They need help determining character.


Determining Character: A New Perspective on Character Evidence By Barrett Anderson; Supervised Analytical Writing and Final Paper for Problems in Evidence, Professor Steven Duke June 29, 2011