The Content of Our Character

Penn State Law Review Penn State Law Review

Article 1

10-1-2021

The Content of Our Character The Content of Our Character

Teneille Brown

Articles:

The Content of Our Character'

Teneille R. Brown*

Common law judges were worried that if jurors learned of the accused's past acts or character traits, they would punish him not for being proved guilty of this crime, but for the kind of person that he is. Unfortunately, our attempt to correct this powerful tendency has only made things worse. When jurors cannot hear how someone has behaved in the past, they will instead rely on immutable facial features-rooted in racist, sexist, and classist stereotypes-to draw character inferences that are even more inaccurate and unfair. Undisputed findings from social psychology demonstrate that we rely on features like the distance between the eyes, the width of the nose, the angles of the jawline, and the color of

skin to spontaneously infer whether someone is threatening, intelligent, or kind. This in turn predicts election outcomes, hiring decisions, teaching evaluations, and even jury verdicts. Because this split-second process is subconscious and pervasive, it is not susceptible to mitigation through jury instructions. Witnesses will be considered untrustworthy based only on their face, and in some cases, justice may require admitting bolstering evidence before their character is technically attacked. I thus propose reversing the ban on character evidence, in favor of a presumption of inadmissibility for immoral traits only. My proposal has a number of benefits, including retethering the rule to its moral, normative roots and acknowledging that not all past act evidence will be unfairly prejudicial. Finally, delivering the greatest balm to judges and attorneys, admissibility longer hinge on the gossamer-thin distinction between would no propensity and non-propensity uses. This jurors will automatically use whatever information is available, including evidence of mental states, to infer character traits, predict behavior, and assess blame.

is because

Table of Contents

I.

The ban on character evidence has noble origins-to ensure that the accused is punished not for what he has done in the past, or for what kind of person he is, but because the current charges are proved beyond a reasonable doubt.2 The ban exemplifies a libertarian spirit of autonomy and rehabilitation: yes, you did bad things before, but there is hope. You

can still be reformed. The historical essence of the rule is thus unambiguously moralistic and optimistic about the potential for people to change.

The common law of the United Kingdom thus prohibited evidence of the accused's traits or past actions to predict whether he committed this crime.' About two hundred years ago this doctrine became universally accepted in the United States. It is now enshrined in the federal evidence rules and those of every state.4

Unfortunately, the premise behind the ban on character evidence was doomed from the start. For one, jurors do not restrict their assessment of character to formal, regulated testimony. They will use whatever evidence is available to them, no matter how unreliable, to automatically infer character traits. These traits are then used to do the very thing the rules prohibit-to predict how others will think and act, and whether they deserve blame.5 Jurorscannot not do this.

Humans are constantly, subconsciously inferring character traits.6 Almost immediately, we move from making a myriad of observations about someone to inferring stable dispositional traits.7 Artful attorneys know this. It is why Roger Stone wore a simple navy suit to his arraignment hearing, so he did not look "too rich." It is why jury consultants tell women to smile more, and why witnesses wear glasses if they want to appear smart.9 It likely also played a role in Harvey Weinstein's use of a walker as he entered his criminal trial.O Yet none of these sources of character information are treated as formal evidence or regulated by the rules.

However, this phenomenon goes well beyond manipulating the way you dress or behave in court. It runs much, much deeper. A robust body of

research demonstrates that people make instantdecisions about whether to trust someone based only on thefeatures oftheirface." And unlike our clothing or demeanor, we cannot easily change our facial features. Jurors will immediately draw trait inferences based on the distance between our eyes, the angles of our eyebrows and lips, the prominence of our cheekbones, whether our face is symmetric-and of course, glaringly, the color of our skin. These inferences are not diagnostic ofpersonality or how someone actually behaves, but they reliably predict whether we find people to be trustworthy, aggressive, likeable, or competent.12

For decades, psychologists have been studying how we form impressions of others. One relevant process, referred to as spontaneous trait inference (STI), has received considerable scrutiny. These inferences occur without our awareness and enable quick character assessments based on limited information. Remarkably, STIs exert long-lasting effects. They have been shown to predict electoral success,1 3 job opportunities, 4 teaching evaluations," and even guilt and sentencing decisions.16 Many legally-significant outcomes may be based on nothing more than the facial equivalent of phrenology.' 7 And yet, the study of STIs has not yet pierced legal research or doctrine. This is about to change.18

A. We Cannot Not Make Character Inferences

Within 0.1 second of meeting anyone, we have already formed an impression of them-including when we are jurors listening to witness testimony.1 9 Almost immediately we have decided whether we think this person is honest, clever, likeable, or dangerous based on superficial information that is outside of their control. Jurors, like the rest of us, then gather information about how the person has behaved. Depending on our goals, new information may or may not lead to updating our initial impressions. 20

It turns out that this basic psychological process of forming immediate impressions of others lies beneath all of our social interactions. It has enabled humans to cooperate in costly endeavors and to predict whether people would be good allies or cheats. 21 All day long we constantly make predictions about others' behaviors and intentions based on their past actions and our assessments of their characters, which we incorrectly assume to be stable. 22 Because this process is spontaneous and subconscious, we cannot stop doing it when we become jurors in trials.

Humans are so motivated to infer people's traits that, in the absence of information about how others have behaved, we instead rely on crude proxies such as race, dress, 24 accent, 25 and facial features 26 to predict

their personalities. 27 We spontaneously is threatening, kind, intelligent or trustworthy based on social context and the superficial features of their face. 28 We make these predictions immediately, unintentionally, and without even realizing we are doing

infer whether someone

Of course, perceiving someone's mouth and eyes can help to assess their present emotions. However, when drawing character inferences from faces, we cannot easily distinguish transient expressions from permanent facial features. 30 We overgeneralize and wrongly assume that people's outward appearance reflects their fixed, interior characters.3"

B. The CharacterEvidence Rules ProhibitUsfrom Doing

Something We Evolved to Do

Despite providing

inaccurate bases for prediction, 32

is widespread agreement about what features make a face dominant, trustworthy, or agreeable. 33 Indeed, even computers that are trained to classify faces based on a number of objective characteristics can predict personality traits that are consistent with human observation. This is based on the reliable, if inaccurate, perceived correlations between physical features and character traits.34

there

Our human brain evolved to facilitate social interactions by crudely predicting character traits. For example, our brains are wired to prioritize memories of immoral conduct, to help us sort people into those with good and bad characters. 35 Moreover, people with lesions in a specific part of the brain-the medial prefrontal cortex-have difficulty forming impressions of others due to deficits inferring character traits.36 Reliably,

if not accurately, encoding and recalling character traits has allowed researchers to use patterns of brain activation to decode the specific identity of someone a subject is thinking about, based just on the subject's neural activity.37 The fact that we have evolutionarily conserved brain architecture for forming character impressions of others tells us something about its importance to our ancestors. 38 Convergent data from behavioral and neuroimaging studies demonstrate the continued social value of being able to make quick character assessments. 39

In addition to being supported by evolutionary mechanisms, these automatic facial inferences are reinforced by social learning (such as glasses cue intelligence, or Black people are more likely to be violent). 40 This leads to less accurate predictions about an individual's future behavior, as well as to systematic discrimination against people with particular, often racialized, characteristics.41 These heuristics can create a feedback loop where learned stereotypes about different races or ethnic groups inform characterinferences, which then feed back into the negative stereotypes. We reinforce the association between certain facial features and positive or negative traits through political cartoons, news media, criminal prosecutions, or discriminatory propaganda.42

The psychological processes facilitating these inferences developed in our deep ancestral past, when we traveled in homogenous groups and rarely intermingled with other races or ethnicities. However, despite endure.4 3 greater genetic and cultural diversity, Psychologists hypothesize this is because: (1) the heuristics are fast and

these processes

efficient, requiring very little cognitive effort; and (2) we implicitly assume facial cues are more predictive ofbehavior than they actually are.44 Despite the primacy with which humans use character traits to predict how others may have acted at another time, this sort of reasoning is explicitly prohibited in civil and criminal trials. As mentioned briefly above, attorneys are not allowed to introduce evidence of someone's past acts or traits for "propensity purposes." That is, attorneys cannot suggest that someone acted in conformity with a trait or behavior on a particular occasion.

If this tendency to infer character traits is as implicit and ubiquitous as I suggest, then how could courts possibly hope to enforce such a farreaching ban? At the heart of the answer is our magical thinking about jurors and trials. Our rules of evidence presume that jurors can and should suspend the very attributes that make them human-namely, their in some cases, their moral intuitions. 45 The emotional, social, and, common law rules of evidence and the federal rules of evidence (FRE) imagine that judges can put a halt to subconscious and automatic human inferences by either explicitly prohibiting any evidence that triggers them, that jurors disregard particular or by issuing inferences. 4 6 There is abundant research that these limiting instructions do not work, and might actually backfire by drawing attention to the very thing that is meant to be ignored.47 If a witness is described as a "junkie" or a "racist," the jury is almost certainly going to infer something negative about the kind ofperson the witness is. This is going to happen regardless of any instruction that the evidence only be used for purposes of assessing impeachment, for example. 48

limiting instructions

Most of our evidentiary rules developed when we had no data on whether jurors could be perfectly rational in their legal reasoning. However, the last fifty years have produced a great deal of knowledge about the powerful forces of social psychology and emotion, which operate in the wings ofthe theater of trials. In many cases, automatic and

unconscious psychological inferences-the product of millions ofyears of evolution and psychology-cannot simply be muted by carefully orchestrated evidence rules. We must revise the character evidence rules to reflect what psychologists already know-that people cannot not make character inferences.

This Article will proceed in three more parts. First, I will detail why the common law got it right-we do tend to assume that behavior can be explained by people's fixed traits, but this is not always an error. Next, I describe how humans immediately use spontaneous trait inferences (STIs) in person-centered blame. 49 This evidence from social to engage psychology significantly weakens the power of evidence rules to mitigate character inferences. Lastly, I articulate and defend my proposed revisions to the character evidence rules in light of the previous Section. Ironically, to achieve the normative commitments of the rule, we must permit more character evidence, rather than less.

Below is my proposed rule, which I provide both here and at the end

for reference:

My proposedrule 404:

(a) Evidence of a person's character, trait, or past acts ("character evidence") may be admissible to prove that on a particular occasion a person acted in accordance with that trait. (b) If the judge makes a preliminary determination that the character evidence speaks to a trait that is not considered immoral, the evidence should be admitted subject only to the balancing test of FRE 403. (c) Ifthe judge makes a preliminary determination that the character speaks to a trait that is considered immoral, it is admissible only if: (1) its probative value substantially outweighs its prejudicial effect; and (2) if offered against a criminal defendant, the occurrence ofthe past act is proved by clear and convincing evidence, and (A) the proponent gives reasonable written notice to defense counsel of the intent to use it so that the criminal defendant has a fair opportunity to contest its use. (B) If contested, the judge should provide a record of the reasoning used to admit or exclude this evidence.

My proposal recognizes that, in some cases, character evidence can be substantially more probative than prejudicial and should be admitted. It

also permits evidence ofpast acts that are not considered bad or immoral, subject only to the balancing test of FRE 403.50 This removes a great deal from the rule's crosshairs, and retethers it to its normative, moral roots. If the character evidence triggers an inference that someone is immoral, my rule adopts a strong presumption against admissibility that can be overcome only if the evidence is substantially more probative than prejudicial. Judges are familiar with this balancing test as it is employed under FRE 609 for credibility impeachment evidence.5' Finally, and perhaps delivering the greatest balm to judges and attorneys everywhere, the admissibility of character evidence would no longer hinge on the gossamer-thin distinction between propensity and non-propensity uses. This aspect of the current rule generates widespread confusion, logical mistakes, and is the reason why FRE 404 is the most frequently litigated evidence rule and the most likely basis for reversal.5 2 My proposed rule for will permit demonstrating victim credibility, or to rebut a claim of fabrication, while prohibiting many non-propensity uses that are likely to be more prejudicial than probative.

instances where past acts are critical

the many

The ban on character evidence only heightens our reliance on unreliable facial traits. Ifwe deny jurors information about how an accused has behaved in the past, they will instead subconsciously rely on immutable facial characteristics rooted in race, class, or sex, that will be even more inaccurate and unfair. But all hope is not lost. Research suggests that the effects of facial impressions may be mitigated through training. This training does not involve simple instructions about the presence of automatic inferences and the need to silence them. Instead, it involves the individual has actually behaved. Quite simply, the effect of automatic facial impressions may be mitigated by hearing about a witness's past

sharing counter-stereotypical

information about how

acts. 53 Counterintuitively, to achieve the goals of the character evidence ban, we should permit more character evidence, rather than less.

C. In Practice,Lots ofCharacterEvidence is Admitted

Technically speaking, the ban on character evidence applies to all types of conduct, all types of traits, and to all human beings. Before we think that the rule is constantly fighting human nature and losing, however, this is not the case. Because the ban is so incomprehensibly far-reaching, it is quite often simply ignored. Many types of evidence fly under the radar. Character evidence is routinely admitted when the rules, if applied carefully, would preclude it. For example, if a prosecutor referred to the defendant as having purchased a home in a gated community and having hired a driver to suggest that he acted in conformity with being a posh and snobby person, this would technically implicate the character ban, and the evidence should not be admitted. However, such evidence is often admitted.

Determining whether the character ban is implicated hangs on strategic framing and context, as well as on how clever the attorneys are in real-time, and explaining in filing motions in limine, objecting circumstantial evidence as implicating propensity evidence.s4 Unless attorneys astutely raise objections, instances of "character evidence" are likely to go undetected. And if there is no objection made to preserve the erroneous admission, there is no possibility of correcting this on appeal. Character evidence is also sometimes admitted for policy reasons, despite violating the rule. A former federal judge and evidence scholar observed, "[i]f the prior bad acts involve sexual misconduct, or child abuse, or a combination of both, courts generally find a theory of admissibility, even if no specific theory of admissibility makes sense."55

1. Exceptions Permit Many Forms of Character Evidence

In addition to courts flat out ignoring the ban, there are a number of common law exceptions built into the current character rules. 56 From the beginning of the common law, there have been many defacto and de jure exceptions to the bar on the use of character evidence. The "mercy rule" allows criminal defendants to admit evidence of a "pertinent trait" of the victim or ofhimself, and the prosecution is then allowed to rebut this trait. In homicide cases, the prosecution may also introduce evidence of the victim's character for peacefulness to rebut defendant's claim of selfdefense." 7Additionally, jurors are explicitly invited to make predictions about people's actions according to their character traits when it is an element of the offense, when sentencing, or when assessing money damages. 58 If testifying at trial, one's character for dishonesty or bias is considered so relevant that it is almost always admitted. Congress and state legislators have also passed evidence rules that permit character evidence in sexual assault cases.

2. Demeanor Evidence Invites Unregulated Character Evidence

Character evidence also plays a huge role, explicitly and implicitly, in assessing credibility. 60 Jurors infer witnesses' characters from the way

they look, dress, speak, and behave in court. This is why attorneys frequently counsel their clients to dress professionally or to wear pastel colors to appear childlike,61 to wear glasses,62 to groom their hair, and even to cover tattoos. This is what Bennet Capers aptly referred to as "evidence without rules" as this demeanor evidence is heard by the jury but is not really regulated. 63 There are obvious racial and class overtones to these unregulated inferences.64

One might then suggest that we blind jurors to any identifying characteristics of the witness that could be unfairly used to infer character traits. But this is not a realistic option. Observing the face and demeanor of a witness has been considered so important that some argue it is required to comply with the criminal defendant's Sixth Amendment right to confront their accusers. 65 And even if we returned to the dreaded trial by affidavit, jurors would still infer character traits from the wording of the affidavit itself 66 People cannot not infer character traits. 67 Shielding the jury from the physical characteristics ofthe parties and witnesses may also lead to the erasure of differences, which could inadvertently exacerbate racist, sexist, ageist, and ableist thought.

D. The BroadScope ofthe Modern CharacterEvidence Rule

Despite the many de facto and de jure exceptions, the scope of the character evidence rule is vast and should prohibit a great deal of evidence. FRE 404(a), as adopted, merely states that "[e]vidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. "6 While there is some variation between states on how they phrase this rule, many are identical to the federal version. What is prohibited is the necessary propensity reasoning-for example, that because someone stole something before and is a thief, they are more likely to have stolen on another date. If propensity reasoning is not required, but is merely possible, then the evidence can be admitted with an instruction limiting it to its non-propensity use.

Historically, the common law was principally concerned with jurors hearing about a criminal defendant's past bad acts. Criminal defendants are already at a disadvantage by virtue of the state's indictment, and the stakes are much higher than in the civil law. And given that testifying witnesses may be impeached with evidence of past convictions, many criminal defendants do not testify on their own behalf This renders past act testimony regarding criminal defendants quite powerful, and potentially damning.

Despite the historical emphasis on preventing prejudice

to the accused, the modern rule bans moral, immoral, and amoral character traits against any person in civil and criminal trials-parties and witnesses alike. 69 To make it concrete, the ban works this way: if a driver wants to prove that a pedestrian was likely drunk when he crossed the street, and it was his intoxicated state and not the driver's negligence that caused his injuries, the defense cannot introduce evidence that the injured pedestrian is a notorious alcoholic. Or, if an executive is accused of defrauding investors at his current job, evidence that he had done so at his last two jobs cannot be used to suggest a propensity to commit fraud. To prove that

a civil defendant is a compassionate person and would only behave in a kind way toward the plaintiff, an attorney cannot introduce evidence of this person spending several hours volunteering at a local soup kitchen. The modern rule is sweeping and covers much more than most lawyers realize.

Character evidence is defined to include traits like being violent, as well as past acts that insinuate that someone is violent, such as having previously started three brawls. Not acting in conformity with a trait can also be character evidence. For example, psychiatric evidence that an individual accused of sexually deviant misconduct is not a sexual psychopath is typically regarded as character evidence under state and federal evidence rules. 70

Crucially, it is not the consideration of evidence of someone's traits or past acts perse that is prohibited, but rather when factfinders are invited to make predictions about how this person will behave in the future or how they have behaved in the past based on such evidence. Evidence that is used for a purpose other than an inference about one's propensity to behave in a certain way is not subject to the ban. This is referred to as an acceptable "non-propensity purpose." Unfortunately, attorneys and judges sometimes incorrectly assume that evidence that is immoral in nature implicates the rule, even when there is no propensity reasoning.7' And if the traits are not considered immoral, they often escape scrutiny even when they do require propensity reasoning.

FRE 404(b) lists various uses of character or past acts evidence that are considered not to require propensity reasoning. Historically, judges have argued that when attorneys use evidence of someone's past acts to impeach their testimony or to prove their mens rea, identity, or a modus operandi, propensity reasoning is not required. In 1893, in Moore v. UnitedStates, the Supreme Court stated that if past acts provide a motive for the present charge, then they are competent and admissible.72 These uses are permitted, judges have held, because they are thought to avoid making character-based arguments about the defendant being more likely

to behave in a particular way. It is this aspect ofthe rule that is the trickiest to apply and which leads to numerous appeals.

E. The CharacterEvidence Ban Leads to Many Appeals and

Acquittals

Character evidence has been called "the most important evidentiary issue in contemporary criminal practice."73 Errors in its application yield more reported decisions than any other rule of evidence. In many jurisdictions, the admission of someone's past bad acts for character inferences provides the most frequently litigated issue in criminal appeals as well as the most likely basis for reversal.74 A recent Westlaw search of state and federal cases for just the last five years resulted in over 800 published appeals based on perceived misapplications of FRE 404. This rule devours a significant chunk of trial and appellate resources. It is likewise difficult to overestimate how much scholarly ink has been spilled on the topic, as scholars recognize how illogical the rule has become. Hopefully in spilling just a tad bit more ink here, we can gain clarity on why the rule needs revising. We now have the benefit of many more years of robust social psychological research, which highlights how the rule expects results that humans cannot give.75

Many scholars and judges have acknowledged the incoherence ofthe character evidence rules. 76 Even the Supreme Court has "concur[red] in the general opinion of courts, textwriters and the profession that much of is archaic, paradoxical and full of this [character evidence] compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter-privilege to the other."7 7 Nevertheless, many have argued that there is no political will to change

law

the rule]78 as its basis rests "more in history than in logic." 79 Ironically, the United Kingdom, which has an even longer history banning character evidence, has found the political will. In 2003, the U.K. significantly revised their version of the rule. 80 Similar to what I propose, the U.K.'s rule now only applies to "reprehensible" conduct,"' which can be admitted so long as it meets specific criteria.

Some argue that the ban on character evidence cannot be reversed in the United States. This is because of our important constitutional guarantees of the presumption of innocence and protection from double jeopardy. However, while FRE 404 echoes these guarantees, it does not violate them.82

Unfortunately, the present rule is both overly broad and overly narrow in pursuit of these goals. The rule permits evidence that is quite prejudicial and invites moral approbation, yet excludes highly probative evidence that is either amoral or unlikely to cause unfair prejudice. 83 This Article seeks to retether the rule to its normative justifications by focusing attention on the ways character evidence can be overly prejudicial in some cases and unlikely to cause much prejudice in others.

F. What is Character, And How Does ItAffect Legal Blame?

Evidence giant John Wigmore understood character evidence to encompass "the actual moral or psychical disposition or sum of traits" of an individual. 84 To him, there was never an appropriate dispositional inference to be made from the bad moral character of a defendant.85 This was because a man "may do the act once and may never do it again[,] and not only may he not do it again, but it is in no degree probable that he will do it again"86 because "human action [is] infinitely varied."8 7

Despite the essential role of morality (and free will) to Wigmore's concept of character, by the mid-twentieth century, scholars began shedding it from the definition."" Charles McCormick defined character as or of "a generalized description of one's disposition, simply one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness."8 9 Note that while the examples are highly moralized behaviors, the definition of character itself is amoral. This permitted later judges and scholars to successfully suggest that character need not be moralized to be excluded under the rule. 90

The FRE adopted McCormick's definition of character, and the Advisory Committee cited approvingly to him. Today, so long as actions or dispositions are used to argue that someone acted in conformity with them, FRE 404(a) is technically implicated. A minority of states have retained the distinction between moral and immoral acts in practice, if not

in their rules. 91 Texas, strangely, finds the morality of the past act to be salient, but to permit rather than to exclude character evidence that involves "moral turpitude." 92 However, most states and the FRE adopted a view of character that is facially amoral.

G. LabelsMattera Great Deal When Determining Whether

Behavior is Viewed as Implicating CharacterEvidence orNot

Determining whether evidence meets the definition of "character evidence" may depend on whether there is a well-recognized label or adjective that can be used to describe the constellation oftraits. Things we don't even consider to be related to character may indeed be quite revealing about one's personality. For example, a prosecutor argued a "defendant had planned the robbery, selecting 'somebody he's got absolutely nothing against, and yet he's the kind ofpersonthat would pick someone like that to do this to, because he just doesn't care. He's not like you."' 93 This is classic character evidence, but it was not recognized as such, because this sort of behavior does not immediately call to mind a one-word trait. It is designed to tell us "what kind of person" the defendant is, but we cannot put our finger on a succinct label other than to suggest that this person is "bad." There are other examples like this, which might be considered highly diagnostic of character, even though there is not a neat label for this behavior. Word choice matters greatly here, too. 94

For example, calling someone an "addict" will affect their perceived culpability more negatively than describing them as having a "substance use disorder." 95 The same constellation of behavior, say problem drug use, could be described clinically as a "diagnosis," biologically as a

"neurogenetic mechanism," or colloquially as a "moral choice." Each of these frameworks likely elicit very different judgments of character and blame.

H. Attorneys Are Allowed to Paint a Picture ofPeople 's Characters

Without Referringto Well-Recognized Traits

While attorneys cannot use traits or past acts to explicitly draw character inferences, they are often allowed to "paint a picture" of the parties or victims. Artful attorneys take advantage of this grey area to share selected details about someone's life, to encourage the jury to connect the dots, and to use this to predict how that person likely behaved. Often, the desired inference is precisely the one drawn by the jurors, without the attorney having to spell it out explicitly and running afoul of the rules. These sources of character evidence are no less powerful for their invisibility. In fact, the inferences we draw ourselves might be stronger than those that are explicitly drawn for us.

Consider someone accused of murder who was described as a polite man who "moved back home to assist his family when his father became ill" and "was one of nine children in a large, church-going family." 96 Not only did the 1 0 th Circuit not consider this impermissible character evidence, it bolstered the claim that the accused's counsel had not been ineffective. The obvious character inference the defense counsel sought to draw was that the defendant was an honorable man who would not have committed cold-blooded murder. Character inferences like these are often allowed at the guilt phase and are required at sentencing.

Evidence in the form of tattoos97 jewelry,98 possessions,99 or even the attorney's clothing0 0 likewise generate automatic inferences. Sometimes these types ofproof are found to cross the line into impermissible character evidence.' 0' But often they escape scrutiny as mere biographical or background evidence or are considered harmless on appeal.o2 Despite often being allowed, these forms of evidence trigger the precise kinds of inferences the character evidence rule seeks to prohibit. A tattoo, possession of guns, or a note in Arabic could each be used to suggest that someone has a particular character trait, and that they acted in accordance with it. Character inferences are just too spontaneous and ubiquitous to be prohibited through evidence rules.

II.

The ban on character evidence reflects a folk psychological notion that if the jury hears, for example, that the accused had previously stolen property, they may be too quick to assume he had stolen in this case, without the prosecution proving this beyond a reasonable doubt. Or, even if the jurors do not find that the accused certainly stole in the present case, because they have heard that he is a "bad man," they may feel anger toward him and think that he deserves to be punished for something. These are thought to be errors ofattribution: the first attributes behaviors to someone based on a fixed trait (once a thief, always a thief), and the second attributes blameworthiness based on this trait (once a thief, you deserve to be punished now) 103 It is our tendency to over-attribute behaviors to fixed dispositions that led common law judges to ban character evidence.

than by other plausible accounts,

The common law got it right. People are more likely to explain others' behavior by referencing their "allegedly enduring dispositions and intentions the circumstances." 0 4 When people do exactly what their social situation demands, inferences about their enduring character or traits are logically unjustified.0 5 For example, someone who is speeding is not inherently selfish; they might be rushing to an emergency room to save a passenger. If I shoot someone who broke into my house and was about to kill me, the situation may have called for it, and it does not reveal much about my character.

for example

As a cognitive bias researcher put it, "[observers] infer wrongly that actions are due to distinctive robust character traits rather than to aspects of the situation," and this "can be explained in terms of confirmation bias." 06 This powerful tendency provides the basis behind the ban on character evidence, even though the folk intuition preceded any empirical support. 07 Numerous psychological studies confirm that when people hear

about someone's behavior, they will tend to infer something about that person's character and will use that dispositional inference to predict how the person will later behave.1 08 While the reasons for this vary, it appears that most people do this because we think character traits and dispositions are fixed and cause behavior, rather than being derived from it.1 09 This tendency has been dubbed the "correspondence bias," or the "fundamental attribution error."" 0

The correspondence bias is well-documented across multiple settings and age groups."' It is likely generally adaptive, as it gives us a sense of agency and predictability.I 2 Assessing others' characters and using this information to predict why or how they behaved allows us to plan our social interactions: "[a] bird is likely to fly; a snake is likely to be venomous. A good person may lend a helping hand; a bad person may stab you in the back.""1 3

The distinction between dispositions and situations

is a bit overblown, however. A recent review of white-collar crime recidivism data found that reoffending could not be explained completely by the situation, and likely included some dispositional factors."4 Most behaviors are a complex, interactive mix of our nature and our nurture. Further, we might exercise our agency to choose certain kinds of environments, and environments might be chosen for us, based on our traits."'

Even so, attribution errors are likely to occur when we assume there is greater "temporal stability" or "cross-situational consistency" between behavioral traits than we should."1 6 Temporal stability is present when we do the same thing in similar circumstances (i.e., stealing money from a tip jar whenever no one is looking). Cross-situational consistency is present when we do the same thing in very different environments (i.e., stealing

from tip jars, family members' purses, neighbors' yards, etc.) whenever we have the opportunity."'

Our desire for predictability and coherence can go awry when we put into buckets that do not capture their remarkable behavioral people variability-both in different situations and across time.118 Intuitively, we understand that humans are not perfectly predictable. Even very young children can attend to situational constraints when reasoning about others' actions."19 It is not as if we never consider the situation; it's just much easier and automatic for us to assume the behavior flows from a stable character trait.

This is particularly true when assessing the behavior of people who are not part of our "ingroup." The correspondence bias is exaggerated in these settings. The moral failures of people of different races or ethnicities are more likely to be attributedto their fixed characters, ratherthan to their environment. Their successes, however, are more likely to be explained away by the situation.120 Our successes are, of course, due to our fixed traits.

A. Correcting the Correspondence Bias Takes Effort Especially if

Assessing Outgroups

Because the correspondence bias can occur spontaneously and outside of our control, mitigating it takes attention and cognitive effort.121 Its effects can be lessened if we are aware of its existence and motivated to account for situational factors. 122 Being trained to take the perspective of others, or adopt their viewpoint, has been found to significantly reduce dispositional inferences.1 23 However, when subjects are mentally taxed, such as when jurors are hearing hours of conflicting testimony in a complicated trial, or when they lack the personal motivation to change their minds because they're assessing people who look different from

them, they are more likely to rely on sticky character evidence to explain behavior.1 2 4

B. It is Not Always an Error

The correspondence bias does not render all use of past acts to prove future conduct overly prejudicial or insufficiently probative. For example, if someone openly mocked a disabled person on public television, this might be relevant in a future charge ofintentional discrimination ofpeople with disabilities. More formal types of recidivism data can also support the use of past act evidence.1 25 But even in the absence of empirical data, common sense tells us that if someone was previously convicted ofbribing an official, for example, this conviction is highly probative ofwhether they bribed an official on another occasion.

The proper use of past acts or character traits depends on the crosssituational and cross-temporal consistency of the trait or act in question. Where someone has done something distinctive, highly unusual, compulsive, or diagnostic of a specific type of immorality, this might be quite probative of whether he would do this thing again and may not be unduly prejudicial.

For example, someone who has intentionally under-reported income for federal tax purposes for the last fifteen years has expressed temporal stability for this trait, so the predictive value of the past act is high. Someone who has intentionally committed corporate fraud in very different institutions has demonstrated cross-situational consistency. In these cases, it might not be overly prejudicial to infer something like a character trait for opportunistic corporate dishonesty.

1. The Perfect Should Not Be the Enemy of the Good

Attributions of behavior need not be perfect to have probative value that substantially exceeds any potential for prejudice. 26 The key question is just how predictive this past behavior needs to be to overcome the

potential for prejudice. Some behaviors can be weakly, or even strongly, predicted by past actions.' 27

People who purchase child pornography (i.e., sexual assault) have crossed a moral boundary, which makes it more likely they will cross it again. Someone who steals a car is more likely to do so again,1 28 and someone who sells drugs is also more likely to do this again. Just how likely they are to repeat these acts depends on several factors, but recidivism data can help make predictions.1 2 9 Someone who commits violent crimes is much less likely to recidivate than someone who robs someone, commits pedophilia, or sells drugs, but the likelihood is still greater than for the general population. 3 0

2. Great Prejudice Could Result if We Do Not Ensure the Act

Actually Occurred

For fairness purposes, we must also ask the extent to which the predicate acts were proved to have actually occurred. To do so, not only should parties be permitted to introduce specific instances of conduct on direct examination, but it might be prudent to permit extrinsic evidence as to whether the past act occurred, so long as it could be procured and admitted easily. The present FRE 405 does not allow this.13'

Once we are confident, either by clear and convincing evidence, or beyond a reasonable doubt, that the individual in fact committed the original bad acts, the likelihood ofhis doing them again is not just possible, but in some cases quite probable. 3 2 Rather than using the presence of correspondence bias to reject all past acts evidence, judges should permit some past act evidence when the recidivism rate, or propensity to reoccur,

is quite high, there is high cross-temporal or cross-situational consistency, and the potential for unfair prejudice is low.133

3. Prejudice Should Not Be Conflated with Probative Value

Recall that the justification for the ban on character evidence was that it was considered substantially more prejudicial than probative in every case. Essentially, it always flunks the balancing test of FRE 403, which is the rule permitting the judge to exclude evidence that is too prejudicial. Every state has a nearly identical counterpart, which states:

It is this concept of prejudice that should be used by courts when evaluating character evidence. Highly probative evidence that favors one party will almost always injure the opposition's case. This does not mean it should be excluded.

For example, testimony that Larry Nassar molested several young gymnasts while giving them physical therapy makes it much more likely that he molested a particular gymnast. This testimony about his past acts can be quite useful testimony if he claims, as he did, that an individual victim was fabricating her account. But we must stop referring to evidence as prejudicial merely because it is important to one side and damning to another. Jurors might be giving evidence great weight because it deserves it.

In some cases, evidence of past acts that are strikingly similar to the crimes charged are deemed unfairly prejudicial based on this alone. In other cases, similarity renders them highly probative.' 35 However, there must be some independent argument-aside from similarity-that makes the evidence unfairly prejudicial. 3 6 This will depend on factors such as:

(a) whether it goes to a peripheral point and is just meant to denigrate the defendant's character in the eyes of the jury; (b) whether there is low confidence that the past act indeed occurred as described; (c) how much time has passed; (d) whether the act speaks to an immoral character trait; (e) how unique or distinguishing the situation was that gave rise to that past act; (f) how common this sort of behavior is, such that it is not diagnostic of an enduring negative trait; and (g) whether there is an incorrect folk assumption that people who do this sort of thing are much more likely than they actually are to repeat it.137 If the answer to these questions suggests that the jury is being told this evidence to smear a witness, rather than to provide essential evidence that might be necessary for their fact-finding, then it will likely be too prejudicial to be admitted. 38 Likewise, if the past act evidence is some of the only incriminating evidence, and there is no other physical evidence suggesting guilt, its admission could be too prejudicial.

Predicting someone's actions and mental states may in fact be aided by knowing how they have behaved under very similar circumstances. Keeping this information from the jury in all cases unnecessarily hinders their factfinding mission. This is particularly true given that social science data suggest that "a jury's learning of prior crimes directly through the evidence is not the inflammatory, unfairly prejudicial, conviction-ensuring information it is often depicted as being. ,139

Blame ought to be an ascription of responsibility for a morally bad action. 40 The emphasis on actions as a basis for legal responsibility reflects and deontology.141 Consequentialism prioritizes the outcomes of acts to determine whether they are good or bad, while deontology asks whether the actor adhered to a set of moral obligations or rules while acting. 142

theories of consequentialism

the prevailing ethical

While the intent ofthe actor matters a great deal in the Kantian account,143 in both Kantian and utilitarian views on ethics, the character of the actor should be largely irrelevant. This influenced the thinking of evidence giant, John Wigmore. These philosophies have also dominated normative ethics for the past 100 years and are at the heart of criminal theory.

However, it turns out that when humans make moral judgments, we are neither pure consequentialists nor deontologists. We use character inferences to guide our assessments of moral blame, in keeping with Aristotle's virtue ethics.1 44 His philosophy had fallen out of favor but is seeing a comeback in moral philosophy (called the "Aretaic Turn"),1 45 given evidence that we are "intuitive virtue theorists."146

Indeed, diverse research teams, focused on different aspects of psychology, have converged on this finding: morality drives our perceptions ofpeople and whether they deserve blame.1 47 We often blame people not only for what they have done in this instance, but for who they are, and everything they have ever done. Rather than asking the question, "Is this act right or wrong," we primarily ask, "Is this person good or bad?"148 "[P]eople quickly and easily attribute morally good or bad traits to others, and they often do so early in an interaction and with limited information. "149 This is referred to as the person-centered approach to blame.

We likely disagree with this normatively." 0 It is too simplistic. People are typically neither completely good nor bad. Most of us "would behave deplorably in many and admirably in many other situations.""' The use of a person-centered approach to blame may often lead to unfair outcomes. It might only be useful when "we can reliably distinguish the minority of people who are good or bad from the majority who are

indeterminate."s 2 Even so, given how quickly we form character assessments to steer how we blame, the rules of evidence must at least acknowledge this powerful tendency. So long as we rely on humans to deliver judgments of moral and legal blame, our rules cannot be naive about how humans actually do this.

Most of us judge people not for what they do or cause, but because of the kinds of people they are.15 3 We think that "good" people deserve less punishment, and "bad" people deserve greater punishment, for the same bad acts." 4

A. CharacterInferences Cannotbe Isolated:There is a Positive

FeedbackLoop Between Ascriptions ofMental States, Causation,and Character

in a feedback

Robust findings from social psychology and moral philosophy demonstrate that we use predictions about intent to assess character and use character evidence to predict intent."' And we use evidence of someone's past acts to inform both character and intent. Thus, past acts, character, and mental states exist loop, where one automatically feeds into predictions of the other. 5 6 These concepts cannot be easily isolated, despite legal requirements to do so. We will infer future intent based on evidence of past actions and will infer character from both.5 7 Ifwe have already decided someone has a bad character, we will infer conforming mental states, and if the circumstantial evidence points to intentionally harming someone, we will assume this person has a bad character. A recent review of the role of morality in social cognition demonstrates that "there is a close, bi-directional relationship between inferring mental states and attributing stable traits."158 We cannot treat mental state inferences as wholly separate from character inferences. In practice, the two are tightly interrelated.

The positive feedback between trait inferences and mental states exists at the neurological level, too. When we think about others, the activation patterns in our brain reflect the mental states we believe they

habitually experience.159 And when we try to understand how someone might behave in the future, we automatically activate these schemas to infer their mental states and their character traits. These "judgments interact and inform one another," and so to understand how we perceive short-term mental states like intent or carelessness, we must also consider character assessments.1 60

B. The Person-CenteredApproach to Blame Reconciles Many

SocialPsychology Findings

intuitive, emotional

A robust body of moral psychology research explains many findings that at first seemed like cognitive errors, but which actually reinforce a person-centered account of blame. This body of research establishes the powerful role of emotions and intuitions in moral judgments. While deliberative processes can influence moral decisions, in many instances rational the justifications.1 6 1Emotions such as disgust, which might have developed to encourage us not to eat spoiled food or to discourage inbreeding, may spillover into more complex social settings. The same may be true for anger or jealousy. Emotional reactions to terrible outcomes may generate feelings of moral outrage, which then bias us to seek someone to blame. The common law appreciated this, which is why gruesome depictions of crime scenes are often excluded as overly prejudicial. Jurors who see these images may experience a powerful emotional impulse to blame someone.

drives our ex post

reaction

1. Moral Character Impacts Ratings of Causation

If the cause of an accident is ambiguous or not known, people will rate someone with a "bad character" as more likely the cause. For example, when we hear that a driver was speeding home to hide cocaine (rather than speeding home to hide a gift), we are more likely to think that he caused a car accident in which he was involved. In these scenarios, his reason for speeding should have no bearing on the physical cause of the crash, but it does. This is because hiding drugs suggests an immoral character while hiding a gift does not. i62

When people violate even more benign social expectations and norms, this can also increase the degree to which we attribute causation and moral blame to them.1 63 Take, for example, two people who engage in nearly identical conduct, such as taking pens out ofa stocked cabinet. Only one is said to be violating a norm (the faculty member) and the other is not (an administrative assistant). When there are no more pens, it will be the faculty member who is thought to have caused this result because she is the one who violated the arbitrary norm. The body of research into "culpable causation" demonstrates that causation is not an objective, discoverable fact ofnature, but is influenced by social norms and character assessments.164

This should be shocking to any student of tort or criminal law. If we think the actor is a bad person or did a bad thing, then controlling for all other variables, we are more likely to say that he caused and intended the harm.1 65 This is fascinating stuff. Social psychology data are eviscerating the very idea of a sharp distinction between assessing a defendant's mental state, the cause of the victim's injury, and his character.1 66 Once we have determined someone has a bad character, it creates a jaundiced lens through which we view all other aspects of their case. This includes whether we think they deserve blame. When an actor is labeled "bad," we blame them for bad outcomes that they intend or desire but did not cause.

2. Moral Character Impacts Ratings of Intent

Previous models ofintentionality held that for an act to be considered intentional, three things had to be present. The actor must have believed that an action would result in a particular outcome, desired this outcome, and had full awareness of his behavior. Research now challenges this account, "showing that individuals attribute intentions to others even (and largely) in the absence of these components."167

Even where an actor could not have acted otherwise, and thus was coerced to kill, study participants found the actor to be more morally responsible for an act if he "identified" with it, meaning that he desired the

compelled outcome.1 68 These findings do not fit with our typical model of blame, which requires freedom to act in order to assign responsibility.1 69 However, they make sense if we adopt a character-based approach to blame. We are quick to infer a bad character and intent when there is very little evidence of it.' 7 0

An example of this is the hindsight bias called the "praise-blame asymmetry," where people blame actors for accidental bad outcomes that they caused but did not intend, but do not praise people for accidental good outcomes that they likewise caused but did not intend.' 7' The classic example is the CEO who considers a development project that will increase profits. The CEO is agnostic to the project's environmental effects and gives it the go-ahead. Ifthe project's outcome turns out to harm the environment, people say the CEO intended the bad outcome and they blame him for it. However, if instead the project turns out to benefit the the CEO receives no praise. Our folk conception of environment, intentionality is tied to morality and aversion to negative outcomes.1 72 If a foreseen outcome is negative, people will attribute intentionality to the decision-maker, but not if the foreseen outcome is positive; the overattribution ofintent only seems to cut one way. 173 Mens reaascriptions are "sensitive to moral valence .... Ifthe outcome is negative, foreknowledge standardly suffices for people to ascribe intentionality." 74 This effect has been found not just in laypeople, but also in French judges. 7 5 If an action is considered immoral, then our emotional reaction to it can bias mental state ascriptions.176

This occurs not just when the outcome is bad, but also when the actor is seen to be immoral. For example, in economic trust games, "the untrustworthy agent was more likely to be evaluated as intending negative outcomes than the trustworthy agent.",177 This is consistent with the idea

that our representations of others reflect the mental states we imagine they habitually experience. 178

3. Person-Centered Blame Explains Why We Want to Punish

Harmless Transgressions

The person-centered approach to blame, and the emotional response that triggers it, can explain why certain fairly innocuous acts elicit such strong moral judgment.1 79 For example, small misdeeds that are seen to be highly diagnostic of an immoral character elicit powerful social condemnation. When given the hypothetical task of hiring a corporate executive, participants in one study favored paying one candidate $1 million more than another candidate who requested a $40,000 marble desk as a hiring perk. The request for the desk was given great weight and was punished because it appeared to say something about the kind of person the candidate was-entitled and immoral.'80

The person-centered approach to blame also helps explain why we have negative visceral reactions to "harmless transgressions such as eating a dead dog that had been hit by a car."'8 ' People routinely rate this behavior as disgusting and wrong, but struggle to explain why, given that the dog was not physically harmed by being eaten. We cannot condemn the behavior by the outcomes, as the dog was already dead. We also cannot condemn the behavior based on a principle that we should never eat a living being, or that we should never hurt a dog, because the actor did not injure the dog. This inability to explain our negative gut reactions has been referred to as "moral dumbfounding."1 2 Our intuitions here may be guided not by consequences or by rule violations, but instead by a sense that this behavior is particularly diagnostic of a disturbed individual, one who has an immoral character. Because these behaviors are rare and unambiguous, they have even greater informational value about someone's character.1 83 This will be discussed in greater detail below.

When information is presented to research participants in a way that permits multiple inferences, but the neutral non-trait reason or the amoral trait reason is described as more likely, the study participants still placed

greater weight on an immoral intent.18 4 For example, even when it was more probable that a driver forgot to turn on her lights or did not realize that the road was one-way, participants were still much more likely to infer that the driver intentionally hit a cyclist. The researchers suspect when you must consider two distinct possibilities at once, this uncertainty is computationally difficult. Because this is cognitively taxing, people do not integrate relative probabilities, and instead select the possibility with the most moral valence and treat it as if it were certain.185 Therefore, when the situation is ambiguous, we are quick to infer intentional action and a bad moral character.

C. Resolving the Tension in Applying 404(b)

Recall that FRE 404(b) permits the use of past actions so long as propensity reasoning is not required. For example, a defendant's previous arson conviction may not be admitted to prove that he was an arsonist who was likely to burn another house down but could be admitted to prove that it could not have been an accident when the second house burned downthe defendant must have intended it. Evidence scholar Ed Imwinkelried, perhaps the most respected supporter of the doctrine of chances, argues that when jurors hear that a defendant has had three of his wives die in a bathtub, they are not "compelled to focus on the accused's past" and thus do not address "the type of person the accused is."1 86 Rather than relying on a character theory, Imwinkelried argues the jury is making an "objective" calculation about the likelihood that his wives would all have accidentally died.17 There is a logical problem with this, however. Because the wives could not have both accidentally died and been intentionally murdered, proving thatthree ofthe defendant's ex-wives had died in a bathtub suggests that at least one of these was not an accident: the defendant intentionally killed them. And if he intentionally killed them, he is "the kind of person" who kills his wives. If the reader is interested in going down this logical rabbit hole, there is a great deal of content to explore elsewhere.' Suffice it to say that attorneys and judges have become exceedingly frustrated with the difficulty of applying FRE 404(b) in a principled way.'8 9

1.

Jurors Will Use FRE 404(b) Evidence to Infer Moral Character

There is another problem with FRE 404(b). Many FRE 404(b) uses of character evidence that are thought not to require an inference about someone's propensity to behave in a particular way, likely require-or at the very least invite-exactly this sort of inference. This is due to personcentered blame and the crosscutting nature of inferences about character, intent, and blame. Once we hear about someone's past acts, we will use this to infer mental states and also to assess character, propensity, and blame.

Consider a typical case where someone's past drug use or addiction was introduced not to show propensity to use drugs, but to prove motive.1 90 Jurors would be given a limiting instruction that they were not supposed to use evidence of the defendant's cocaine addiction to suggest he was a bad person who was likely to use drugs. They could only use this evidence to prove motive, which technically does not require any propensity inferences. However, whether a propensity inference is technically required has no bearing on whether it will be automatically inferred. Because addiction is considered immoral, the jury will automatically use this information to do what is prohibited-to predict action in conformity with addiction and to increase the defendant's blame. Crucially, character inferences that we draw subconsciously and implicitly are no weaker or more extreme than those we draw deliberately.191

2. Past Acts Evidence May be Crucial for Justice

Consider the case of Bill Cosby, who was accused of drugging and raping dozens of women he claimed to mentor. When one woman finally decided to go on the record as a witness, Cosby predictably said she was lying. 192 It was of considerable probative value to introduce the accounts of the many other women who claimed he did the same exact thing, under very similar circumstances.1 93 Pennsylvania has not adopted a version of FRE 413, which permits past sexual assaults to be admitted for propensity purposes. Thus, because FRE 404 does not allow past act evidence to prove conformity, in Cosby's first prosecution, the jury could not hear about the dozens of other rape accusations. The jury was deadlocked,

which resulted in a mistrial.194 Reports suggest the reason for the mistrial was that jurors questioned the victim's credibility. 95 Questioning the victim's credibility is a common problem in sexual assault cases and often leads to non-prosecution or acquittal. 96 When Cosby was prosecuted a second time, for unknown reasons the state was allowed to introduce the testimony of five other women who said they were also sexually assaulted by Cosby. This evidence bolstered the victim's credibility and likely made all the difference because he was convicted on these charges.19'

Character evidence related to domestic violence can also be quite probative without being unfairly prejudicial. Consider the O.J. Simpson case, where a husband was accused of murdering his ex-wife. Past acts of domestic violence would have been highly probative to put the escalating abuse in context. Indeed, the omission of past act evidence would have been potentially misleading and unfair to the prosecution, as data shows that men who repeatedly beat their wives are more likely to murder them when they try to finally leave.1 98 There are countless other examples where evidence of someone's past acts or traits would be appropriate and fair for propensity purposes.

D. TraitInferencesfrom Behaviorare Spontaneous, Sticky, and

Sensitive to Immoral Conduct

The person-centered account of blame tells us we are right to be worried that jurors will use character evidence to draw an unfair inference about the kind of person that someone is. "[H]umans are highly motivated to explain and predict others behavior" through forming impressions of their characters.1 99 Now, decades of social psychology help us understand exactly how this occurs.

Because humans are an incredibly social species, 2 0 it is crucial for us to predict others' behavior in order to choose partners, to not be vulnerable to exploitation, and to survive. 20

I As early as 12 months old,

infants automatically evaluate others on their "goodness or badness." 20 2 These impressions can be formed intentionally or unintentionally after observing or trying to comprehend someone's behavior. They can also be based on superficial cues.

There are multiple steps to forming impressions of others. The first involves categorizing people into social groups. 20 3 When we form an impression of someone based on their behavior, our brains recruit the dorsomedial prefrontal cortex. When we form impressions based on physical features such as skin color or the appearance of the eyes and lips, we rely more on the amygdala, a complex neural structure mediating emotional and fearful responses. 20 4 Collectively, we form impressions of others based on spontaneous trait inferences (STIs). These occur during the encoding stage, "even if people do not intend to infer trait information[,] and can even occur without awareness that such an inference has occurred."2 os

After we have categorized someone based on race, sex, class, or age, which we can do with near-perfect accuracy,206 we use both engrained and learned stereotypes to sort them into buckets of how we believe they are likely to think and behave. 20 7 We are very good at categorizing people into groups, even ifthe categories are terrible predictors of behavior.20 Only if we are motivated to look to individuating factors do we integrate attributes specific to the person. Because this individuating process takes much more effort and cognitive resources, most of us avoid it.

1. When Past Behavior is Unknown, Traits are Automatically

Inferred Based on Superficial Appearance

Most of the information we need to make character assessments is obtained within as little as 100 milliseconds of encountering someone, and

the inferences are not improved with more time. 209 In an eyeblink, we have already conducted a "character diagnosis. "210 We immediately draw inferences based on whatever limited information is available, regardless of how reliable it is.21 1 Surprisingly, subtle facial features generate powerful character assessments.212

There appear to be three key dimensions of facial first impressions: trustworthiness, dominance, and youthful-attractiveness, with the first two relating to assessments of threat, and the third relating to sexual selection.213 These dimensions have helped our ancestors determine whether we might want to approach or avoid another human being. 2 14 While they were developed for simpler times, they continue to be powerful means of sorting people today.215 Research suggests that trustworthiness is the most salient of these. This factor alone can explain almost all of the variance in ratings of faces by a principal component analysis. 216 This process has enormous impact on trials, as much ofwhat jurors do is assess the credibility of witnesses.

We assess character by using low-level perceptual cues based upon people's face traits. "[N]eutral expression faces with wider jaws, heavier brows, and smaller eyes tend to be judged as more dominant." 217 Dominant faces are more likely to generate trait inferences of being impulsive, careless, or aggressive. Conversely, neutral-expression faces with high brows and upturned lips tend to be judged as more trustworthy, and submissive.218 The neural basis of these processes has been investigated,

with studies showing bilateral amygdala damage impairs discrimination between trustworthy and untrustworthy-looking faces. Untrustworthylooking faces evoke greater activity in the amygdala than trustworthylooking faces, which suggests this may be mediated by fear. 219

Importantly, how we rate a face predicts how we interpret ambiguous behavior-"the same behavior can be interpreted as assertive or unconfident depending on the perceived dominance of an accompanying face." 2 20 For example, if someone is described as sitting quietly with a face that appears confident and dominant, this behavior is interpreted as powerful. The same behavior is interpreted as expressing weakness when the target's face is rated as low in confidence. We read faces to infer people's character traits, and then use trait information to focus on different aspects of their faces.

Sexism plays a powerful role here. Having a "resting bitch face" leads to automatic negative inferences about one's character.2 2' Women's faces that do not conform to gender-stereotypical traits and that are rated as more "masculine-looking" are assumed to be more unfriendly and cold.22 2 Conversely, when we see people with babyfaces, we infer that they are more submissive and trustworthy. 2 23 The "babyface" effect is powerful enough to mitigate racial stereotypes about Black men being physically threatening. 224 Shockingly, having a babyface predicted outcomes in small claims court rulings.225

Facial beauty also influences moral judgments, as people reflect the "beauty-is-good" stereotype and conflate physical attractiveness with moral goodness. 226 In this fascinating area of research, neuroimaging has

revealed that activation in the medial orbitofrontal cortex is collectively modulated by facial beauty (such as having a symmetrical and statistically average face) and moral beauty (such as watching a boy cover an injured pigeon with a blanket). 2 27 Both images are aesthetically beautiful, though only the latter is actually based on virtues and morality. Researchers hypothesize that when we see physically attractive individuals, our brains experience beauty, and confuse physical beauty for moral beauty. Interestingly, in brain activation when viewing physically ugly and morally "ugly" scenes. 228

there is no overlap

To demonstrate how individuals confuse physical beauty with "goodness" or "competence," one pioneering study had participants rate a teacher's effectiveness while only watching ten second video clips where the sound was off. These silent videos of instructors delivering their lectures positively predicted actual students' end-of-semester evaluations of the instructors. This effect was found to be mediated by physical attractiveness. 2 29 In another study, attractive candidates in Italian elections were more successful. 230 Physical attractiveness is often conflated with morality.

People who look like us are also more likely to be rated as moral, and people who do not look like us are more likely to be rated as immoral. This is because, to reiterate, our mentalizing frameworks were engineered for simpler times, to create coherent assessments of what were once fairly homogenous peer groups. This may be why, even when we lack sufficient base rate data and are uncertain about people's characters, we are likely to draw assumptions about the "kinds of people" that they are, especially when they are different from us in some deep or obvious way.2 31

When white Americans view Black and white faces subliminally (meaning below the threshold of our consciousness), the fear response in the amygdala, indicating a perceived threat, are stronger than when they are presented supraliminally (above the threshold of consciousness).23 2 Trait inferences might therefore be moderated in part by emotional responses of fear, which occur immediately and without our realizing it.

This may also play a role in explaining systemic injustices-i.e., why Black people are given lengthier sentences for the same offenses.2 33

The fact that the stereotypes that fuel these judgments have gone "underground" only makes them more difficult to detect and mitigate. 234 Few people want to admit, even to themselves, that they are racist, sexist, classist, or ableist. Preliminary research suggests that people who are high in perceived power are more likely to rely on stereotypes when inferring traits.235 This suggests the use of stereotypes may be a means of policing social hierarchy.

These findings might explain why studies have shown that a defendant's committing prior crimes is the best predictor of conviction, even when juries were not allowed to hear about the past acts.236 At first these puzzling results had been difficult to explain. How could the existence of a past act predict a subsequent conviction, if the jury was not made aware of the prior act? When past bad acts are kept from the jury, they may instead rely on physical features of the defendant, such as his being a Black man or having an untrustworthy face, to infer traits of criminality. Jurors might implicitly find skin color or Black facial features to reflect something about the person's character, when in reality this is just highly correlated with being arrested or incarcerated, due to systemic racism in policing and prosecution. 2 37

Culture plays a large role in terms of which traits are most salient for a given role, and which stereotypes are activated.238 In the United States, political success can be predicted by face-based judgments of "power," while in Japan, assessments of politicians' "warmth" predict election outcomes. 239 Judgments of competence, based solely on viewing

photographs of candidates, predicted the outcome of U.S. Congressional elections.240

While researchers knew that trait inferences could be spontaneous or intentional, research has now demonstrated that the two do not produce significantly different results in terms of the strength ofthe trait inferences. This means that when we automatically infer traits from faces, the results are indistinguishable from when we deliberately do so. In one study that compared spontaneous with intentional trait inferences, the strength ofthe inferences between the two conditions were similar or identical.24 1

Spontaneous, unintentional trait inferences based on race, religion, gender, height, obesity, skin color, and the size and shape of our eyes, brows, or noses may be just as strong as the inferences we draw intentionally. They require no mental state inferences about the individual, and thus can be quite poor predictors of individual character.2 42 Even so, they can also persevere in the face of new, and presumably conflicting, less cognitive effort than forming information because they require impressions based upon individual attributes or behavior, "[t]hus, category-based information is relied upon when possible."2 4 3

In summary, physical features and corresponding stereotypes will lead to automatic inferences about people's characters, regardless of their past behavior. 244 The jury does not need to hear formal character testimony to infer that someone is a bad person who likely committed the crime and deserves to be punished. Jurors will infer this automatically on their own, based on observable, unreliable facial characteristics. 245

2. Mitigating Spontaneous Trait Inferences Requires

Motivation

Just as with the correspondence bias, the use of STIs may be mitigated if the is motivated to deliberately revise her thinking.246 We are more likely to use new, positive information to update our evaluations of compatriots, and less likely to do so for people who are not part of our ingroup. This leads to skewed

individual drawing

the inference

impressions of ingroup, relative to outgroup, members. 247 Also, ifwe have a personal desire to be accurate, we are more likely to expend the effort to update our character appraisals.248 For example, we are more likely to update our assessments when we need to work with someone in the future and our success in some way depends on correctly guessing how they will behave.249

Unfortunately, most of us do not regularly update the impressions we form of others. We either do not realize we have spontaneously inferred traits to form an impression of someone, or we are not personally motivated to change our perception. Because of this, STIs display significant anchoring effects, exerting a disproportionate influence on downstream decisions.25 0 In many cases, unless people are specifically invited to update their impressions, people continue to rely on STIs even when more individualized cues are available, and even when specific rules prohibit relying on them.2 5

3. Mitigating Spontaneous Trait Inferences Will Be Difficult at

Best and Impossible at Worst

To correct an implicit bias, one must "be aware of the influence of the knowledge that they possess and also be motivated to correct for its influence." 252 People are not aware of the impact of STIs and are therefore unable to "fully correct for their influence." 2 53 The automaticity and pervasiveness of, and ourobliviousness to, STIs makes them quite difficult to silence. One study found that we can develop modestly successful interventions to reduce implicit bias, so long as the specific social category, such as gender or ethnicity, is identified. 254 This suggests that for mitigation to be successful, we cannot make a "general appeal" to be unbiased. 2 55 Patternjury instructions are therefore unlikely to be effective debiasing tools, as they will not draw attention and correction to an identified social group.

Even if a deliberate instruction could reduce bias in a targeted group, it is magical thinking to assume a quick and authoritative limiting instruction could prevent all potentially negative inferences from being drawn. 25 6 There are too many subconscious biases we are constantly interpreting, and it would be impossible to mitigate each ofthese through a deliberative process. Of course, blinding individuals to the faces of subjects, such as criminal defendants who often do not testify on their own behalf-and whose off-stand facial expressions are heavily scrutinizedwould remove some of the implicit bias. But as discussed above, doing this is often impossible, and certainly so for all witnesses in a trial.257 Rather than trying to blind jurors to the facial characteristics ofwitnesses, judges ought to allow the more accurate predictors of behavior25 8-past and future behavior-to be heard. Common sense, as well as preliminary social psychology research, suggests this could work.

Previous research in non-legal contexts has shown that people update facial impressions when new behavioral information about specific people is shared. 259 One team that was exploring the role of the right amygdala in updating STIs found that "[fJaces that were associated with positive behaviors were judged as more trustworthy than faces that were associated with negative behaviors." 26 0 Thus, evidence of how someone has behaved in the past can reduce the impact of implicit facial impressions.

A recent paper focused specifically on testing intervention to mitigate the impact of STIs. The team compared facial trait assessments when subjects either heard or did not hear information about the person's past acts. Despite being highly automatized, STIs of trustworthiness could be updatedif subjects learned about how targets had actually behaved.26' The behavioral information spontaneously triggered a counter-stereotypical inference (i.e., an inference that runs in the opposite direction from those that were automatically inferred from their face). These led participants to revise their trait inferences. This is encouraging.

One drawback of this study is that it only tested the trustworthiness of white male faces. There is good reason to believe that mitigating STIs will be harder in other social groups. Even so, studies have demonstrated that the sticky and subconscious biases from STIs can be mitigated with information about someone's past acts that is counter-stereotypical. 262

Other studies have also shown that knowledge of past acts, if presented, can replace or mitigate impressions from faces. 263 This comports with common sense as well. As between information about how someone behaved in the past, and trustworthiness information we glean from their face, it is hard to defend requiring jurors to rely just on facial features. Allowing parties to provide positive, bolstering character evidence might be crucial to justice-to correct subconscious and deeply unfair trait inferences. 264

These studies still need to be replicated in more legally valid settings, but there is no reason to believe that the core psychological process would operate differently during trials. There would likely be a great deal more noise in the form of conflicting evidence and cross-examination, which would make testing the specific effect of past act evidence quite difficult. in I am currently working with a social psychologist who specializes racialized STIs to test whether mock jurors may use counter-stereotypical past act evidence to mitigate the impact of having an untrustworthy face in a civil trial. But even if we do not see measurable effects, there is a good information based on behavior. common-sense argument for allowing Behavioral evidence must be at least a bit more probative of characterthan the unregulated evidence drawn subconsciously from STIs.

E. ImmoralityDrives CharacterAssessments

Behaviors that are perceived to be immoral are "more heavily weighted than their positive counterparts" and lead to greater changes in our implicit and explicit impressions of character. 265 Negative information is considered more "diagnostic"-that is, it is more readily linked to a category or label, in this case of being a "bad" person.266 It takes fewer

instances of "bad" behavior to label someone's character as bad than it takes instances of "good" behavior to label someone's character as good.267 Having lived through junior high school, we understand this phenomenon: it is easier to move from having a good reputation to a bad reputation, than to move from a bad reputation to a good one.268 As Jonathan Haidt said, "[o]ne scandal can outweigh a lifetime of public service."269

Judgments about immoral conduct appear to be made very quickly and can be long-lasting. They also lead to more generalized prescriptions from behavior to enduring traits than when the conduct is moral. 270 If someone makes one mistake or does one immoral act, we are more likely to extrapolate from this to an assessment that they are "bad" but one or two moral traits is usually insufficient to assess someone as "good." There is a substantial amount of evidence that amoral or neutral traits are not given the same weight. The more negative the effect evoked by hearing about how someone has acted (e.g., he "pushed other people out of the way") the more attributional weight this evidence is given.2 71

Immoral behavior possesses greater informational value-it is more salient-because it is perceived as less common.272 To give an example, if on one occasion I denied help to a needy friend, this is considered more indicative of my character than if I were to help a needy friend on one occasion. 273 Immoral behavior "appears to be especially high in category diagnosticity, whereas moral behavior is less so" and this leads to immoral behavior having a great impact on impression formation. 2 74 If the immoral conduct is rare, outrageous, and deliberate, such as tipping over containers of water that were left in the Arizona desert for dehydrated refugees, then drawing a negative inference about one's character from this action might not be irrational. Conversely, we do not assume that those who leave the water containers alone are especially good people. We expect moral conduct.

The heightened informational value of negative, immoral behavior might relate to our evolutionary past and signal detection theory (how

intense the signal is, and how tuned in we are to it). Being able to make predictions about who might cheat us was probably more critical to our ancestors' survival than predicting who was likely to be kind.275 The risk of getting it wrong was simply greater.

Jurors are not likely to give much weight to amoral or positive trait

information. Thus, our common law evidence rules were correct to focus on immoral, or bad traits. However, there may be good normative or social reasons for prioritizing negative information. This is why my proposal does not ban all past immoral acts, but merely those that the judge finds to be substantially more prejudicial than probative.

IV. FRE 404 MUST BE REVISED

A. Take-Awaysfrom the SocialPsychology Research

As Edward Imwinkelried acknowledged back in 1994, "there is a growing realization thatthe rigid American character evidence prohibition is out of step with the more liberal doctrines in effect in other progressive common-law jurisdictions ... [and] the latest psychological research suggests that character evidence may be more probative than we have traditionally assumed it to be." 276 Since 1994, the strength of this argument has only grown. At this point, a colossal body of psychological research has made several important contributions that undermine our modern character evidence rule. I will summarize these contributions below, some of which have been known for many decades:

1) People tend to explain behavior with reference to fixed character traits ratherthan to situational factors. 2) However, if the character inferences are based on rare, highly immoral acts that are quite likely to be repeated, the propensity inference might not be an error and its use in court might be substantially more probative than prejudicial. 3) We are driven to blame people for the kinds of people they are, ratherthan for the things that they do, which is referred to as "personcentered blame." 4) This person-centered blame is facilitated by many automatic inferences. One such type, spontaneous trait inferences (STIs), generates immediate, subconscious, and sticky traitinferences based social upon stereotypes.

facial characteristics and unreliable

immutable

5) If we ban testimony of how someone has behaved in the past, jurors will rely too much on STIs to predict others' characters. 6) We cannot treat mental state inferences as wholly separate from character inferences. Jurors will automatically use evidence ofmental states to infer character traits, and vice versa. 7) Subconscious character inferences cannot feasibly be mitigated through jury instructions. 8) Conduct that is perceived to be immoral is given greater weight than moral or amoral conduct, but depending on the circumstances, this might not be irrational, and may even be just.

Compared to when the common law adopted the character evidence rule, we now know much more about how people assess behavior and blame. We are highly motivated to judge people not for what they have done, but for the kinds of people that they are. We will therefore use whatever information is available to sort individuals into groups of those who are "good" and those who are "bad." Unfortunately, this sorting is often informed by mere split-second observations-based on people's face, race, sex, power, and class. The processes that developed to facilitate this are crude, but they persist because they require little cognitive effort or reflection, and we are mostly unaware they exist.

Whether these mechanisms reflect cognitive biases, confusion, or mental shortcuts, the descriptive picture is what it is. To the extent this picture is at odds with legal doctrine, the legal doctrine can either be routinely ignored, or it can change. 277 As Bertram Malle and Sarah Nelson suggested, so long as the law continues to rely on laypeople to assess blame, it should reconcile itself to the layperson's view of behavior.278 Reforming our legal rules seems particularly important where the intuitions the rules are fighting against are automatic, spontaneous, unconscious, and persistent.

B. Specifics ofMy Proposal

1. The Revised Rule Should Be Limited to Immoral Character

Evidence

FRE 404 should be replaced with a rule that permits moral and neutral character evidence and presumes inadmissibility for character evidence

indicating an immoral trait. This seems like a radical idea, but it is not. Indeed, something like it has been proposed by other evidence scholars, based on different sorts ofconcerns. 279 Though not without its own critics, the U.K.'s Criminal Justice Act of 2003 likewise restricts its focus to "reprehensible" behavior, which may be admitted in courts in the United Kingdom so long as it does not have "an adverse effect on the fairness of the proceedings." 28 0 The proposal I suggest would take a similar course. However, given some early confusion defining what qualifies as bad enough to be "reprehensible," my proposal would ask judges to consider whether the past act or character trait is considered immoral according to a substantial portion of the community.28 1 Judges are well-equipped to perform this function, given their experience with other causes of action that require inquiries into objective social norms, such as defamation and public disclosure of private, embarrassing facts.282

Evidence of actions or traits that are deemed by the judge to likely be considered virtuous or morally neutral by the jury would be admitted subject only to FRE 403's balancing test. This is because they are not likely to trigger strong dispositional inferences or the person-centered approach to blame. Positive evidence would thus be allowed, so long as it did not devolve into a trial-within-a-trial or waste too much time. When witness credibility is critical, and the person perhaps has an untrustworthylooking face, this would permit witnesses to spend some time bolstering their credibility before it is explicitly attacked. 283

If an attorney is going to introduce formal testimony that will likely trigger the jury to infer that the individual is immoral, then the attorney should first file notice with the court ofher intention to do so. This would permit a motion in limine by the opposing counsel, so that the judge can determine, outside of the hearing of the jury, whether the evidence passes the reverse 403 balancing test ofthe rule I propose. If an attorney does not do this and introduces evidence of an immoral character trait without prior notice and approval by the judge, then this could lead to sufficient harm that the judge might need to declare a mistrial. This will depend on the circumstances and just how prejudicial and sticky the jury's inference is likely to be.

Either during a hearing on a motion in limine, or in response to an objection by opposing counsel, the judge would need to make a preliminary determination under FRE 104 that sufficient evidence exists to support a finding that the conduct or trait in question would likely be considered immoral by some members ofthe jury. If it is amoral or moral, it would be admitted subject only to FRE 403's balancing test.

While generally FRE 403 presumes that evidence is admissible unless it is overly prejudicial, the rule proposed here assumes the reverse if the trait or past act is considered immoral. This is in keeping with the concerns over the correspondence bias, the person-centered approach to blame, STIs and the high informational value of negative traits. Most evidence that is immoral should be excluded under this test. However, there is built-in discretion for judges to admit evidence in a case like Bill Cosby's or Larry Nasser's, where the past act evidence was not unfairly prejudicial and may be necessary for justice. Even if the offering party could demonstrate, in a motion in limine, that the character evidence is substantially more probative than prejudicial, then it could, but not must, be admitted. This proposal provides a great deal more discretion to judges, which will hopefully better tailor the rule to undue prejudice and will lead to fewer appeals.

In making the threshold decision on immorality, judges should be careful not to use their personal, subjective sense ofwhat is moral, but to appeal to social norms that are likely to be reflected in the jury. The touchstone would be whether some members ofthe jury would likely find the evidence immoral. The test is meant to be descriptive, and not prescriptive about which behaviors should be considered immoral. As social mores are not shared universally, not everyone on the jury would need to find the conduct immoral, only some subsect. The rule is intended to be flexible and to adapt to common sense and changing social mores.

There, of course, may be debate on the margins as to what counts as immoral and what does not. Two judges may disagree about whether the trait triggers the rule, or not. This disagreement is to be expected and

implicates propensity reasoning. In case their decision

cannot be entirely avoided.284 Even so, focusing on immorality will likely be more intuitive and less unpredictable than determining whether the evidence is challenged, judges may be aided by explaining what is likely to be negatively inferred by the admission ofthis trait and why this trait is likely immoral or moral. Immoral actions and traits likely trigger the jury to feel blame, shame, antipathy, stigma, or even mild moral outrage, anger, or disgust toward the person against whom it is offered. If these are likely, the evidence is probably immoral. Also, the question is not whether they think this particularwitness is capable of experiencing shame, guilt, etc. Instead, judges should ask whether objectively, by a community standard, these feelings are likely experienced by the jury.285

In addition to our common-sense intuitions about morality, judges may also be guided by the taxonomy developed by Jonathan Haidt and Craig Joseph. These moral psychologists identified five domains ofmoral judgment.286 The first domain is concerned with the suffering ofothers and would involve character traits of neglecting, scaring, or physically injuring. 287 The second domain is fairness and reciprocity, and would include character traits of unequal treatment or unfair discrimination. 2 88 The third domain is ingroup loyalty, with the negative trait speaking to failures to perform the obligations of group membership. 289 The fourth is related to respect for social order and authority. The negative traits would include vices of disobedience or disrespect.290 The fifth is purity or sanctity, which would cover immoral traits like indecency, promiscuity, and lack of control over desires. 2 9 1 People who are considered immoral under this domain, such as the unhoused or those with substance use disorder, often engender feelings of disgust, which can be very difficult to

mitigate. Together, these five domains reflect the common ethics of autonomy, community, and divinity. Importantly, we do not all prioritize these domains equally; however, they capture a comprehensive and nuanced view of morality, which might be helpful to judges in defending their preliminary findings as to whether past actions or traits may trigger the rule.

2. My Proposal No Longer Defines Character to Require

Propensity Reasoning

Given what we know from moral psychology and the spontaneity of trait inferences, the focus on propensity in FRE 404 is unwise. Jurors will draw negative inferences about witnesses and parties on their own, even if they are not explicitly invited to do so. They will then use those inferences to predict future and past behavior and mental states. Further, the reliance on limiting instructions is also misguided. Instructions will not work to focus the jury on the mental state inquiry rather than the propensity to engage in the actus reus. Because we reflexively and subconsciously use mental state ascriptions to predict behavior, and use behavioral predictions to infer mental states, it is asking too much to expect jurors to keep these interconnected processes separate.

3. What Are the Likely Impacts of this Rule?

This proposal is motivated by a desire to more narrowly tailor FRE 404 to unfair prejudice, to improve accuracy in judgments, and to make the evidence rules more coherent and easier to apply. These are my priorities. I am agnostic about whether the revised rule will help or hurt particular parties or will be seen as being pro-defendant or proprosecution.

It is impossible to know exactly what the impact of my proposal will be, given uncertainty about how particular judges and courts might apply it. That said, there are a couple of likely outcomes. First, jurors will hear less damning character evidence than is currently admitted under FRE 404(b). Judges permit a great deal of highly prejudicial evidence of immoral past acts to prove motive, intent, lack of accident, or the confused "doctrine of chances," subject only to the balancing rule of FRE 403. My rule ratchets up the presumption against admissibility, such that most evidence of past immoral conduct should be excluded, regardless of whether it is technically used for a non-propensity inference. This is based on the data that jurors will automatically infer character traits from past act evidence and because the line between propensity and non-propensity inferences is often impossible to draw.

Some have argued that giving judges the discretion to admit past acts, subject to an evaluation of prejudicial effects, would be "tantamount to the

virtual free admissibility ofcharacter evidence." 292 On the one hand, it will increase the admissibility of the defendant's past good acts. However, given that the character evidence rule applies to all witnesses in all cases, the introduction of more character evidence might help as many it hurts.2 93 Finally, creating a presumption against defendants as admissibility for past act evidence that is presently admitted to prove intent, motive, and the like, will make it much harder for judges to admit damning evidence that is currently admitted via FRE 404(b).

Importantly, we cannot know, ex ante, whether increased or decreased legal accountability is a good or bad thing. It is near impossible to say that decreasing acquittals or decreasing convictions is per se good or bad. Unfair outcomes are still possible under my proposed rule but can be reduced ifjudges are required to fully evaluate the proffered evidence and make a clear record of the reasoning behind the court's findings. 294

Under my proposal, there will likely be more prosecutions and civil claims for sexual assault cases. This is notable because at present, rape is significantly under-prosecuted. 295 Prosecutors are reluctant to indict, and plaintiffs are reluctant to sue, when evidence ofthe defendant's past sexual assaults cannot be heard by the jury.2 96 Defendants often claim that the victim is lying, and the jury is unlikely to believe the victim without corroborating evidence.

There will almost certainly be far fewer appeals based on the character evidence rules. Even if judges disagree about what counts as immoral, the shift to a balancing test, rather than a mandatory ban, means that judges will have discretion in applying the rule. This is precisely the point, and will reduce the inefficiency, confusion, and many appeals the current rule creates.

Here is where the crystal ball gets a little bit murky. There may be fewer convictions (or simply shorter sentences) and findings of liability on the merits if defendants who have "guilty-looking" faces are allowed to provide bolstering evidence of their good character that goes beyond the traits directly pertinent to the crime. Conversely, there may be greater convictions and findings of liability if the victim was discredited for having an untrustworthy face, which can be mitigated with evidence of past acts. As civil plaintiffs are often thought to be malingering, allowing them to introduce positive character evidence might engender greater sympathy from juries. Finally, the bolstering of either side's witnesses might permit them to be more fairly assessed. This will all depend on the composition of the jury and how motivated they are to expend cognitive effort to get it right. But compared to the status quo, my proposal should promote better and fairer factfinding, as witnesses are not assessed just based on their superficial characteristics.

4. A Draft of My Proposed Rule 404

404(a) Evidence of a person's character, trait, or past acts ("character evidence") may be admissible to prove that on a particular occasion a person acted in accordance with that trait. (b) If the judge makes a preliminary determination that the character evidence speaks to a trait that is not considered immoral, the evidence should be admitted subject only to the balancing test of FRE 403. (c) If the judge makes a preliminary determination that the character speaks to a traitthat is considered immoral, it is admissible only if: (1) its probative value substantially outweighs its prejudicial effect; and (2) if offered against a criminal defendant, the occurrence of the past act is proved by clear and convincing evidence, 297 and (A) the proponent gives reasonable written notice to defense counsel of the intent to use it so that the criminal defendant has a fair opportunity to contest its use. (B) If contested, the judge should provide a record of the reasoning used to admit or exclude this evidence.

5. The Benefits of My Proposal

The rule I propose has many benefits. First, it puts morality squarely back into the character evidence rule, where it belongs. 298 We know that

morality drives character assessments, so a rule that ignores this fact is likely to be ignored as well. Rather than excluding positive traits that are not likely to trigger an unfair sense of blame or correspondence bias, this rule focuses our sights on traits that are immoral.

Second, the rule I propose will reduce errors in the rule's application. My proposal no longer requires judges to assess whether the evidence is being used to argue propensity to act in conformity with a trait. This simplification also provides a more honest account of how jurors will automatically use evidence of past acts to infer character, as well as mental states. The big benefit of my proposal is the ease of application, and its retethering of the rule to notions of prejudice. The current rule permits incredibly prejudicial evidence under FRE 404(b) and then excludes nonprejudicial information under FRE 404(a). It also creates unnecessary appeals based on difficult questions of whether propensity inferences are required or permitted, and whether the defendant "opened the door" to his pertinent trait being impeached on cross-examination. The relevant inquiry under my rule would simply be whether the prosecution's evidence speaks to an immoral trait, and whether it is substantially more probative than prejudicial

Third, the rule I propose would remove the current rule's rigid, mandatory nature, which has been shown to be both overly broad and overly narrow. Instead, just as FRE 403 does not require exclusion and merely permits it, this rule would not require admission, but merely permits it. My proposal gives more flexibility to the trial judge and will reduce the number of appeals when judges make reasonable judgment calls. Of course, ifthe judge unreasonably permits evidence that is far too prejudicial or rejects evidence that is not, this can always be challenged on appeal for abuse of discretion.

This proposal will greatly reduce both the burden that FRE 404 places on courts, as well as the widespread confusion and unfairness the rule generates. In addition to being more narrowly tailored and intellectually honest, this proposal better reflects how jurors spontaneously and unconsciously infer character traits from whatever information they have available, and then use this to assess blame. In doing so, the revised rule re-anchors the inquiry to notions of probative value, prejudice, fairness, and morality, rather than to technical adherence to an increasingly incoherent rule.

--- FOOTNOTES ---

ABSTRACT

1. "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of theircharacter." -Martin Luther King, Jr. at the March on Washington on August 28, 1963. This Article calls for revision to the evidence rules based precisely on the kind of racial prejudice reflected in this famous quote.

* Teneille R. Brown is a Professor of Law in the Center for Law and the Biomedical Sciences at the S.J. Quinney College of Law, and a member of the Centerfor Health Ethics, Arts andHumanities at the University of Utah. She would like to thank Ron Allen, Michael Risinger, Michael Saks, Emily Murphy, and Ed Cheng for their feedback on drafts of this project, as well as the members of the Utah Supreme Court Evidence Advisory Committee, who likewise provided helpful comments on this proposal. While writing this Article during the early months of the COVID-19 pandemic, she was caring for and teaching two young children at home.

INTRODUCTION: DIFFICULTY APPLYING THE CHARACTER EVIDENCE

BAN.................................................................................................................3

A. We CannotNotMake CharacterInferences..................................... 6 B.

The CharacterEvidence Rules ProhibitUsfrom Doing Something We Evolved to Do ...................................................... 7 In Practice,Lots of CharacterEvidence is Admitted..................12 1. Exceptions Permit Many Forms of Character Evidence ........... 13 2. Demeanor Evidence Invites Unregulated Character

C.

Evidence .................................................................................... 13 D. The BroadScope ofthe Modern CharacterEvidence Rule ............ 15 E.

The CharacterEvidence Ban Leads to Many Appeals and Acquittals.........................................................................................17 F. What is Character,And How Does itAffect LegalBlame? ............ 19 G. Labels Matter a GreatDeal When DeterminingWhether

Behavior is Viewed asImplicating CharacterEvidence or Not .....20

H. AttorneysAre Allowed to PaintA PictureofPeople's

CharactersWithout Referringto Well-Recognized Traits..............21

II. THE COMMON LAW GOT IT MOSTLY RIGHT: PEOPLE EXPLAIN BEHAVIOR

IN TERMS OF DISPOSITIONS, BUT THIS IS NOT ALWAYS AN ERROR ................. 23

A. Correctingthe CorrespondenceBias Takes Effort Especially

B.

ifA ssessingOutgroups.................................................................... 25 It is NotAlways an Error................................................................ 26 1. The Perfect Should Not Be the Enemy of the Good.................26 2. Great Prejudice Could Result if We Do Not Ensure the

Act Actually Occurred .............................................................. 27 3. Prejudice Should Not Be Conflated with Probative Value ....... 28

III. WE WILL USE WHATEVER INFORMATION IS AVAILABLE TO INFER

CHARACTER AND ASSESS BLAME ................................................................. 29

B.

A. CharacterInferences Cannotbe Isolated: There is a Positive FeedbackLoop BetweenAscriptions ofMental States, Causation, and Character............................................................... 31 The Person-CenteredApproach to Blame ReconcilesMany SocialPsychologyFindings............................................................ 32 1. Moral Character Impacts Ratings of Causation ........................ 32 2. Moral Character Impacts Ratings of Intent ............................... 33 3. Person-Centered Blame Explains Why We Want to Punish

Harmless Transgressions...........................................................35

C. Resolving the Tension in Applying 404(b) ...................................... 36

1. Jurors Will Use FRE 404(b) Evidence to Infer Moral

Character ................................................................................... 37 2. Past Acts Evidence May be Crucial for Justice.........................37

D. TraitInferencesfrom Behavior are Spontaneous, Sticky, and Sensitive to Immoral Conduct......................................................... 1. When Past Behavior is Unknown, Traits Are

Automatically Inferred Based on Superficial Appearance........39

2. Mitigating Spontaneous Trait Inferences Requires

Motivation.................................................................................44

3. Mitigating Spontaneous Trait Inferences Will Be Difficult

E.

at Best and Impossible at Worst................................................45 ImmoralityDrives CharacterAssessments ..................................... 47 IV. FRE 404 MUST BE REVISED ......................................................................... 49 Take-Awaysfrom the SocialPsychology Research.........................49 Specifics ofMy Proposal.................................................................50 1. The Revised Rule Should Be Limited to Immoral

A. B.

Character Evidence ................................................................... 50

2. My Proposal No Longer Defines Character to Require

Propensity Reasoning................................................................54 3. What Are the Likely Impacts of this Rule?...............................54 4. A Draft of My Proposed Rule 404 ............................................ 56 5. The Benefits of My Proposal .................................................... 56

.

INTRODUCTION: DIFFICULTY APPLYING THE CHARACTER

EVIDENCE BAN

2. See David P. Leonard, In Defense of the Character Evidence Prohibition:

Foundationsofthe Rule Against Trial by Character,73 IND. L.J. 1161, 1167-68 (1998).

3. See id. 4. See FED. R. EVID. 404(a)(1). There are notable common law and statutory

exceptions built into the rule, which will be discussed below.

5. See Kao-Wei Chua & Jonathan Freeman, FacialStereotype Bias Is Mitigatedby Training, Soc. PSYCH. & PERSONALITY ScI., Nov. 2020, at 1, 1; see also Bastian Jaeger et al., Can People Detect the Trustworthiness of Strangers Based on Their Facial Appearance? 16 (Nov. 27, 2020) [hereinafter Jaeger et al., Can PeopleDetect] (unpublished manuscript) (https://bit.ly/34pkfly).

6. See Chua & Freeman, supranote 5, at 1; see also Alexander Todorov & James Uleman, SpontaneousTraitInferencesAre Bound to Actors'Faces:Evidencefrom a False Recognition Paradigm,83 J. PERSONALITY & SOC. PSYCH. 1051, 1051 (2002).

7. See David Hamilton et al., Sowing the Seeds of Stereotypes: Spontaneous

InferencesAbout Groups, 109 J. PERSONALITY & SOC. PSYCH. 569, 569-70 (2015).

8. See Vanessa Friedman, Does ThisDressMakeMe Look Guilty?, N.Y. TIMES (April

25, 2019), https://nyti.ms/34dwazw.

9. See Michael Brown, Is Justice Blind or Just Visually Impaired? The Effects of

Eyeglasses on Mock JurorDecisions, THE JURY EXPERT, Mar. 2011, at 1, 1-2.

10. See Jasmine Harris, The Truth About Harvey Weinstein's Walker, N.Y. TIMES

(Jan. 30, 2020), https://nyti.ms/3oJBiox.

11. See Tessa Marzi et al., Trust at First Sight: Evidence from ERPs, 9 SOC.

COGNITIVE & AFFECTIVE NEUROSCIENCE 63, 63 (2012).

12. See Chua & Freeman, supranote 5, at 1; see also Jaeger et al., CanPeopleDetect,

supranote 5, at 16.

13. See Marzi et al., supranote 11, at 63. 14. See Sarah V. Stevenage & Yolanda McKay, Model Applicants: The Effect of FacialAppearance on RecruitmentDecisions, 90 BRIT. J. PSYCH. 221, 229 (1999) (where physical disfigurement had a strong negative impact on hiring decisions); see also Michele C. Kaufmann et al., Age Bias in Selection Decisions: The Role ofFacialAppearance and FitnessImpressions,FRONTIERS I PSYCH., Dec. 2017, at 1, 1; see also Warren B. Scott, Filling in the Gap: How Dental Aesthetics Impact Future Outcomes Through Inferences of Competence 73 (Ph.D. dissertation, Howard University) (ProQuest Dissertations & Theses Global) (noting that job candidates with better looking teeth, who are often whiter and wealthier, had higher "hireability" ratings and higher recommended starting salaries than candidates with crooked teeth).

(Dec. 2020)

15. See Nalini Ambady & Robert Rosenthal, Half a Minute: PredictingTeacher Evaluationsfrom Thin Slices of Nonverbal Behavior and PhysicalAttractiveness, 64 J. PERSONALITY & SOC. PSYCH. 431, 431 (1993).

16. See Bastian Jaeger et al., Can We Reduce FacialBiases? PersistentEffects of FacialTrustworthiness on Sentencing Decisions, J. EXPERIMENTAL SOC. PSYCH., Sept. 2020, at 1, 2 [hereinafter Jaeger et al., Can We Reduce].

17. See Ram Hassin & Yaacov Trope, Facing Faces: Studies on the Cognitive Aspects of Physiognomy, 78 J. PERSONALITY & SOC. PSYCH. 837, 837 (2000); see also Harriet Over & Richard Cook, Where Do Spontaneous FirstImpressionsof FacesCome From?, 170 COGNITION 190, 190 (2018).

18. See Chua & Freeman, supranote 5, at 1(describing empirical support for the idea

that face impressions have no correspondence with actual personality).

19. Some impressions can be formed after less than .04 second of exposure. See Sean Baron et al., Amygdala and Dorsomedial Prefrontal Cortex Responses to AppearanceBased and Behavior-Based Person Impressions, 6 SOC. COGNITIVE & AFFECTIVE NEUROSCIENCE 572, 572 (2011); see also Thimna Klatt et al., Looking Bad: Inferring Criminality After 100 Milliseconds, 12 APPLIED PSYCH. CRIM. JUST. 114, 114-25 (2016); Over & Cook, supra note 17, at 190.

20. See PeterMende-Siedlecki, Changing Our Minds: The Neural Bases ofDynamic Impression Updating, 24 CURRENT OP. PSYCH. 72, 72 (2018); see also Irmak Olcaysoy Okten et al., On the Updating of Spontaneous Impressions, 117 J. PERSONALITY & SOC. PSYCH. 1, 18-19 (2019).

21. See id. at 93. 22. See Daniel Ames & Susan Fiske, Outcome Dependency Alters

the Neural Substrates of Impression Formation, 83 NEUROIMAGE 599, 605 (2013); see also Peter Vranas, The Indeterminacy Paradox: Character Evaluations and Human Psychology, 39 Nots 1, 29 (2005); see also Randy McCarthy & John Skowronski, What Will PhilDo Next? Spontaneously Inferred Traits Influence Predictions of Behavior, 47 J. EXPERIMENTAL SOC. PSYCH. 321, 330 (2011).

23. See Jasmine Gonzales Rose, Racial CharacterEvidence in Police Killing Cases,

2018 WIS. L. REV. 369, 386-87 (2018).

24. See Bennett Capers, Evidence Without Rules, 94 NOTRE DAME L. REv. 867, 876 (2018) ("[C]lothing is not subjected to evidentiary rules. The smart prosecutor will instruct the victim to dress modestly at trial in order to present the victim as a 'good girl.' By doing so, and without uttering a word, the prosecutor is introducing evidence of the victim's character.").

25. See Rose, supra note 23, at 386-87. 26. See Jaeger et al., Can People Detect, supra note 5, at 3; see also Todorov &

Uleman, supra note 6, at 1064 (STIs are bound to actor's faces in long-term memory).

so.

27. See Over & Cook, supranote 17, at 190. 28. See id.; see also Victoria K. Lee & Lasana T. Harris, How Social Cognition Can

Inform SocialDecisionMaking, 7 FRONTIERS NEUROSCIENCE 1, 3 (2013); see also Over & Cook, supranote 17, at 190.

29. See David Pizarro & David Tannenbaum, BRINGING CHARACTER BACK: HOW THE MOTIVATION TO EVALUATE CHARACTER INFLUENCES JUDGMENTS OF MORAL BLAME (2011), reprintedin THE SOCIAL PSYCHOLOGY OF MORALITY: EXPLORING THE CAUSES OF GOOD AND EVIL 91, 92 (Mario Mikulincer & Phillip R. Shaver eds., 2012); see also Todorov & Uleman, supra note 6, at 1051.

30. See Over & Cook, supra note 17, at 196. 31. See Chua & Freeman, supra note 5, at 1. 32. See Jaeger et al., Can PeopleDetect, supranote 5, at 16. 33. See Jaeger et al., Can We Reduce, supra note 16, at 5. 34. See Connor J. Parde et al., Social TraitInformation in Deep Convolutional Neural

Networks Trainedfor FaceIdentification, COGNITIVE SCI., June 2019, at 1, 1.

35. See Luke J. Chang & Alan G. Sanfey, Unforgettable Ultimatums? Expectation ViolationsPromoteEnhancedSocialMemory Following Economic Exchange, FRONTIERS BEHAV. NEUROSCIENCE, Oct. 2009, at 1, 1-12.

36. See Chiara Ferrari et al., The DorsomedialPrefrontal Cortex Mediates the InteractionBetween MoralandAesthetic Valuation: A TMS Study on the Beauty-is-Good Stereotype, 12 SOC. COGNITIVE & AFFECTIVE NEUROSCIENCE 707, 707-17 (20 17); see also

Ning Ma et al., Spontaneous and Intentional Trait Inferences Recruit a Common MentalizingNetworkto a Different Degree:Spontaneous Inferences Activate Only its Core Areas, 6 Soc. NEUROSCIENCE 123, 123-38 (2011).

37. See Simon B. Eickhoff & Robert Langner, Neuroimaging-BasedPredictionof Mental Traits:Roadto Utopiaor Orwell?, PLOS BIOL., Nov. 14, 2019, at 1, 1-2; see also Demis Hassabis et al., Imagine All the People: How the Brain Creates and Uses PersonalityModels to PredictBehavior, 24 CEREBRAL CORTEX 1979, 1983 (2014); see also Jaeger et al., Can PeopleDetect, supra note 5, at 16. 38. See Mende-Siedlecki, supra note 20, at 72. 39. See Lee & Harris, supra note 28, at 11. 40. See Clare Sutherland et al., Individual Differences in Trust EvaluationsAre Shaped Mostly by Environments, Not Genes, 1 17 PNAS 10218, 10218 (2020). But see Sutherland et al., Social Learning and Evolutionary Mechanisms Are Not Mutually Exclusive, 28 PNAS 16114, 16114 (2020).

41. See Jaeger et al., Can We Reduce, supra note 16, at 1-2. 42. See Over & Cook, supra note 17, at 195. 43. Nikolaas N. Oosterhof & Alexander Todorov, The Functional Basis of Face Evaluation, 105 PROC. NAT'L ACAD. SCI. 11087, 11091 (2008) ("These compelling impressions are constructed from facial cues that have evolutionary significance. The accurate perceptions of emotional expressions and the dominance of conspecifics are critical for survival and successful social interaction.").

44. The belief that personality traits are reflected in a person's facial characteristics

is called "physiognomy." See Jaeger et al., Can We Reduce, supranote 16, at 2.

45. See Teneille R. Brown, The Affective BlindnessofEvidence Law, 89 DENV. U. L.

REv. 47, 47-48 (2011).

46. Judges are presumed to be capable of the herculean task of dodging most human cognitive biases, simply by virtue of the robes they wear and experience they have had. See Peter Tillers, WhatIs Wrong with CharacterEvidence?, 49 HASTINGS L.J. 781, 790 (1998).

47. See T. Brown, supranote 45, at 66. 48. For example, the infamous "Mark Fuhrman tapes," where an LAPD detective on the O.J. Simpson case repeatedly used racial slurs, were introduced not to prove the detective was a racist, but to impeach his testimony that he had not used a particular racial slur in over a decade. However, once this evidence was heard, Fuhrman's racism colored every aspect of the prosecution. See ROBERTO ARON ET AL., The Fuhrman Tapes, TRIAL COMMUNICATION SKILLS § 38:6 (2d ed. 2020).

49. See Samuel Johnson et al., Predictionsfrom Uncertain Moral Character, in PROCEEDINGS OF THE 41 ST ANNUAL CONFERENCE OF THE COGNITIVE SCIENCE SOCIETY 506, 509 (2019); see also Mark A. Thornton et al., The Social Brain Automatically Predicts Others'FutureMental States, 39 J. NEUROSCIENCE 140, 140 (2019).

50. Federal Rule of Evidence 403 states, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." FED. R. EVID. 403.

51. The arguments I provide here could likewise be used to motivate evidence committees to revise FRE 609 as well. Indeed, all credibility impeachment evidence could be treated under the proposal I suggest. However, there is no immediate reason to subsume the credibility impeachment inquiry of FRE 609 into that of FRE 404.

52. See Edward J. Imwinkelried, Uncharged Misconduct: One of the Most MisunderstoodIssues in CriminalEvidence, CRIM. JUST., Summer 1986, at 6, 7 [hereinafter Imwinkelried, UnchargedMisconduct]; see also Edward J. Imwinkelried, The Use of Evidence of an Accused's Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulfthe CharacterEvidence Prohibition,51 OHIO ST. L.J. 575, 576 (1990) [hereinafter Imwinkelried, The Use].

53. See Chua & Freeman, supra note 5, at 1. 54. See Daniel D. Blinka, Character, Liberalism, and the Protean Culture of

Evidence Law, 37 SEATTLE U. L. REV. 87, 89 (2013).

55. R. COLLIN MANGRUM & DEE BENSON, MANGRUM & BENSON ON UTAH EVIDENCE 227 (2018-2019 ed.), as cited in State v. Murphy, 441 P.3d 787, 802 (Jan. 27, 2020) (Harris J., concurring); see also Hillel Bavli, Objective Chanceand the Rule Against CharacterEvidence 5 (SMU Dedman Sch. of L. Legal Stud., Research Paper No. 513, 2021) ("[T]he admissibility or inadmissibility of other-acts character evidence-a category of evidence that is undoubtedly highly impactful on the outcome of a case-is frequently left to chance. This leads to arbitrary outcomes and substantial injustices in both criminal and civil cases.").

56. ROGER PARK & AVIVA ORENSTEIN, CharacterEvidence, Including Evidence of Other Crimes, Wrongs, or Acts: Exceptions, TRIAL OBJECTIONS HANDBOOK § 2:7 (2d ed. 2020).

57. See FED. R. Evm. 404(a)(2). 58. See Chris William Sanchirico, CharacterEvidence andthe Object of Trial, 101 COLUM. L. REv. 1227, 1282 (2001). In these instances, jurors are asked to use evidence of someone's past acts or character traits to predict conformity with that trait. See, e.g., Hidalgo v. Arizona, 138 S. Ct. 1054, 1054-55 (2018). For older examples, see Umphrey v. Deery, 48 N.W.2d 897, 909 (N.D. 1951); see also City of Chicago v. Scholten, 75 Ill. 468, 472 (Ill. 1874).

59. See R.P. Davis, Annotation, Admissibility, in Prosecutionfor Sexual Offense, of Evidence of Other SimilarOffenses, Part1 of 2, 77 A.L.R.2d 841 (1961); see also David Crump, The Case for Selective Abolition of the Rules ofEvidence, 35 HOFSTRA L. REv. 585, 630 (2006). The exceptions to 404 created for sexual assault cases provide a roadmap for more sweeping, comprehensive reform. However, the failure to more significantly revise the character evidence rules seems to come down not to lack of knowledge of its defects, but to lack of political will:

[T]here is another explanation [for the passage of FRE 413-415]: the lobbying efforts of feminists, who particularly targeted rape, coincided with the inclinations of a Senate Judiciary Committee that favored broad admissibility of evidence in criminal cases. In other words, the difference between the usual character rules and Rules 413 through 415 is the product of political forces.

Id.

60. See Deborah L. Rhode, Characterin Criminal Justice Proceedings: Rethinking Its Role in Rules Governing Evidence, Punishment, Prosecutors, and Parole, 45 AM. J. CRIM. L. 353, 357 (2019) ("That tension between our reluctance to convict based on character and our recognition of its frequent relevance has led to policies that are sometimes unjust in principle and unworkable in practice."); see also Julia Simon-Kerr, Credibilityby

Proxy, 85 GEo. WASH. L. REV. 152, 154 (2017) (explaining how the impeachment rules of 609 are already geared at signaling which witnesses do not comply with "norms of honorable behavior").

61. See Capers, supra note 24, at 876-77. 62. See M. Brown, supra note 9, at 23. 63. See Capers, supra note 24, at 867. 64. See Rose, supranote 23, at 405 ("It would be unheard of for a young white female to be perceived as violent, aggressive, or otherwise threatening to law enforcement or the 'neighborhood watch' for wearing a hoodie, listening to hip-hop music, playing basketball, experimenting with marijuana, or using popular slang on social media.").

65. See Susan A. Bandes & Neal Feigenson, Virtual Trials:Necessity, Invention, and the Evolution ofthe Courtroom, 68 BUFF. L. REV. 1275, 1283 (2020) ("Live testimony has, since its inception, been intimately tied to a belief that personal observation is essential to . . . Demeanor evidence 'relies heavily on the the ability to evaluate demeanor interpretation of facial expression and body language."' (quoting Susan A. Bandes, Remorse, Demeanor, and the Consequences ofMisinterpretation:The Limits ofLaw as a Window into the Soul, 3 J. L., RELIGION, & ST. 170, 172 (2014 .

.

66. See SoYon Rim et al., Seeing Others Through Rose-Colored Glasses: An Affiliation GoalandPositivityBiasin ImplicitTraitImpressions,49 J. EXPERIMENTAL SOC. PSYCH. 1204, 1205 (2013); see also Frank Van Overwalle et al., Spontaneous Goal Inferences are Often Inferred Faster Than Spontaneous Trait Inferences, 48 J. EXPERIMENTAL Soc. PSYCH. 13, 16 (2012).

67. Spontaneous trait inferences and character assessments rely on the "four horsemen" of automaticity-they occur without awareness, are unintentional, we lack control over them, and they are efficient. See Lasana Harris et al., Exploring the GeneralizationProcessfrom PastBehavior to PredictingFutureBehavior, 29 J. BEHAV. DECISION MAKING 419, 420 (2016).

68. FED. R. EVID. 404(a)(1). 69. FRE 404(b) on its face applies equally in civil and criminal cases, but it is often

not taken as seriously or applied at all in civil cases. See 1 EDWARD J. IMWINKELRIED & RAMONA L. LAMPLEY, FEDERAL EVIDENCE TACTICS § 4.04 (2020); see also Andrew E. Taslitz, MyselfAlone: IndividualizingJustice Through PsychologicalCharacterEvidence, 52 MD. L. REV. 1, 7-8 (1993). While recognizing that the current rule does not require the past acts to indicate the actor is a "bad person," Professor Taslitz found this to be sensible: Note that this definition, contrary to the definition of 'character' offered by some commentators, does not necessarily have a moral connotation: the testimony need not concern whether the defendant is in some sense a good or a bad person. This makes sense because a conception of character evidence based solely on morality would be inconsistent with the policy concerns that have led courts to treat such evidence cautiously.

Id.

70. See Freeman v. State, 486 P.2d 967, 972 (Alaska 1971). 71. See Barry v. Aldridge, No. CIV 13-040, 2016 WL 1060249, at *8 (E.D. Okla. Mar. 15, 2016). The court erroneously assumed that evidence of the defendant's lack of emotion when her baby had just been murdered was character evidence, despite the fact that its use did not require propensity reasoning. See id. Focusing on the morality of the evidence, rather than whether it implicates FRE 404, has led many courts astray. See id.

72. See Moore v. United States, 150 U.S. 57, 61 (1893) ("The fact that the testimony also had a tendency to show that defendant had been guilty of Camp's murder would not be sufficient to exclude it, if it were otherwise competent."); see generallyThomas J. Reed, The Development ofthe PropensityRule in FederalCriminal Causes 1840-1975, 51 U. CIN. L. REV. 299, 302-03 (1982) (explaining the general history of the federal common law related to character evidence and its permitted use to prove motive or other mental states).

73. See Imwinkelried, Uncharged Misconduct, supra note 52, at 6; see also

Imwinkelried, The Use, supra note 52, at 576.

74. See Imwinkelried, UnchargedMisconduct, supranote 52, at 7. 75. See Roger C. Park, Character at the Crossroads, 49 HASTINGS L.J. 717, 730 (1998) (stating that psychology scholarship has little to say about whether to reform FRE 404(a)-(b); see also Tillers, supranote 46, at 782; M. Brown, supranote 9, at 131.

76. See Tillers, supranote 46, at 781 ("The rule also has been subjected to withering 'circumstantial' use of criticism. But the character evidence rule-which bars the 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.)"); see also Paul S. Milich, The Degrading Character Rule in American CriminalTrials, 47 GA. L. REV. 775, 776 (2013) ("The rule's coherence has degraded so badly that the justifications for the rule and the tools for applying it are anemic in all but the clearest cases.").

77. Michelsonv. United States, 335 U.S. 469, 486 (1948).

78. See, e.g., Milich, supra note 76, at 791 ("Yet as weak as the character rule is, there is no apparent political will to simply abolish it altogether and adopt the Continental view, admitting character evidence whenever it is relevant.").

79. See Judson F. Falknor, ExtrinsicPoliciesAffecting Admissibility, 10 RUTGERs L.

REV. 574, 584 (1956).

80. See Criminal Justice Act, 2003, c.44, §§ 98-112.1 (U.K.); see also Michael Stockdale et al., Bad CharacterEvidence in the Criminal Trial: The English Statutory Common Law Dichotomy Anglo-AustralianPerspectives,3 J. INTL. & COMP. L. 441,44344 (2016) ("In the United Kingdom since the passage of the Criminal Justice Act of 2003, 'bad character evidence, or 'BCE' is presumed inadmissible. There are seven ways that the BCE may be admitted, and once admitted under any of them, use of the BCE is not limited to the gateway through which it was admitted." (citing Criminal Justice Act, 2003, c.44, §§ 98-112.1 (U.K. .

81. See Criminal Justice Act, 2003, c.44, § 106(2)(b) (U.K.); see also James Goudkamp, Bad CharacterEvidence andReprehensible Behaviour, 12 INT'L J. EVIDENCE & PROOF 116, 116-17 (2008).

82. See Kenneth J. Melilli, The CharacterEvidence Rule Revisited, 1998 BYU L. REV. 1547, 1618 (1998); see also United States v. LeMay, 260 F.3d 1018, 1024-25 (9th Cir. 2001) (upholding the admission of past sexual assaults for propensity purposes as constitutional, the Ninth Circuit stated that "[t]he Supreme Court has cautioned against the wholesale importation of common law and evidentiary rules into the Due Process Clause of Constitution"); see also United States v. Mound, 157 F.3d 1153, 1153 (8th Cir. 1998); see also United States v. Enjady, 134 F.3d 1427, 1432 (10th Cir. 1998), opinion clarified, No. 96-2285, 1998 WL 133994 (10th Cir. Mar. 25, 1998).

83. See Edward J. Imwinkelried, Some CommentsAbout Mr. DavidKarp'sRemarks on PropensityEvidence, 70 CHi-KENT L. REV. 37, 37 (1994) [hereinafter Imwinkelried, Some Comments] ("Moreover, the latest psychological research suggests that character evidence may be more probative than we have traditionally assumed it to be.").

84. IA JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 52, at 1148 (Peter

Tillers ed., 1983). 85. See id. 86. Id. at 1160. 87. Id. at 1857 ("[I]t mustbe noted that when the doing of an act is the proposition to be proved there can never be a direct inferencefrom an act offormer conduct to the act charged; ... Human action being infinitely varied, there is no adequate probative connection between the two. A may do the act once and may never do it again; and not only may he not do it again, but it is in no degree probable that he will do it again." (emphasis added ; see also JOHN H. WIGMORE, A POCKET CODE OF THE RULES OF EVIDENCE IN TRIALS AT LAW 64 (ist ed. 1910).

88. See, e.g., Blinka, supra note 54, at 89, 144 (explaining different schools of thought on whether character involves inferences about morality, or whether psychology has anything useful to contribute, and concluding that the "more alluring" approach to character is "non-ideological, value-free, and, best of all, rooted in a purportedly objective scientific school that is devoid of divisive social values").

89. CHARLES T. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE 340-41 (1954). 90. See Taslitz, supra note 69, 7-8 ("Note that this definition, contrary to the definition of 'character' offered by some commentators, does not necessarily have a moral connotation: the testimony need not concern whether the defendant is in some sense a good or a bad person. This makes sense because a conception of character evidence based solely on morality would be inconsistent with the policy concerns that have led courts to treat such evidence cautiously.").

91. See, e.g., McClure v. State Banking Co., 65 S.E. 33, 33 (Ga. Ct. App. 1909) ("The rule prevailing in England and in most of the American states, that evidence of character is not usually received when offered for the purpose of throwing light on the probability of the doing of a certain act by the person whose character is in question, is not of force in this state. The contrary doctrine has been recognized in our jurisprudence from a very early date."). The Utah equivalent states "in conformity" rather than "in accordance" but is otherwise identical. Just because the plain language is often identical, however, states may interpret the rules in unique ways. See UTAH R. OF EVID. 404(a) ("Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in conformity with the character or trait.").

92. 1 ADELE HEDGES & DANIEL K. HEDGES, TEx. PRAC. GUIDE CIVIL TRIAL § 6:116 (2020) ("Tex. R. Evid. 404(a) permits character evidence offered by a party accused of conduct involving moral turpitude.").

93. People v. Dykes, 209 P.3d 1, 38 n.6 (Cal. 2009). 94. See Bernice Pescosolido, The Public Stigma of Mental Illness: What Do We Think; WhatDo We Know; What Can We Prove?, 54 J. OF HEALTH AND SOC. BEHAV. 1, 11 (2013).

95. John Kelly & Cassandra Westerhoff, Does itMatterHow We Refer to Individuals with Substance-RelatedConditions?A Randomized Study ofTwo Commonly Used Terms, 21 INT'L. J. OF DRUG POL'Y 202, 206 (2010).

96. Brecheenv. Reynolds, 41 F.3d 1343, 1367 (10thCir. 1994).

1,

2018)

("A murder

victim's gang tattoos are

97. See Taylorv. State, No. 05-17-00658, 2018 WL 3640467, at *48 (Tex. Ct. App. highly Aug. inflammatory character evidence and extremely prejudicial."); see also Roy v. State, 997 S.W.2d 863, 866 (Tex. Ct. App. 1999) (appellate judge gave broad discretion to trial court to permit "background" contextual evidence, such as officer's testimony that gang members often get teardrop tattoos after murdering someone); see also People v. Vinson, B247084, 2015 WL 1008087, at *6 (Cal. Ct. App. Mar. 5, 2015) (gang tattoo was permitted against defense objection to it as character evidence, as prosecution claimed it went to motive).

considered

98. See John Schwartz, Extreme Makeover: Criminal Court Edition, N.Y. TiMEs (Dec. 5, 2010), https://nyti.ms/3hYtdJF (describing how Douglas Keene counseled white-collar defendants in the Enron trial not to wear their $10,000 watches to testify).

99. See, e.g., People v. Zackowitz, 254 N.Y. 192, 196, 172 N.E. 466 (1930) (background information on the defendant's ownership of many guns considered impermissible character evidence); United States v. Hayat, 710 F.3d 875, 901 (9th Cir. 2013) (reasoning that the prosecution in a terrorism case was allowed to introduce evidence that a Muslim defendant had a note in his pocket in Arabic, which they interpreted to mean that the accused was a jihadist). In Hayat,the court did not treat this as character evidence, despite it being used to draw the explicit inference about the "kind of person" the defendant was, and to then predict how he likely behaved. See id.

100. See Paul Butler, RaciallyBasedJuryNullification:BlackPowerin the Criminal Justice System, 105 YALE L.J. 677, 685 (1995) (explaining how a Black criminal defense attorney in DC was not allowed to accessorize with a kente cloth stole, as the judge considered it to be sending a message of "racial pride" to the jury).

101. See, e.g., State v. Hart, 584 N.W.2d 863, 869 (S.D. 1998); see also Tiffani K. Landeen-Hoeke, State v. Hart: Tearing the HeartOut ofRules 404(a) & 405(a), 45 S.D. L. REV. 130, 134-37 (2000) (prosecution was allowed to paint a picture of the victim as a "peaceable, innocuous man" when drunk, and defendant was not allowed to impeach because this was not treated as impermissible character evidence); State v. Renneberg, 522 P.2d 835, 836 (Wash 1974) (by testifying to biographical information such as having attended college, having been a candidate in the Miss Yakima pageant, and a member of the glee club and drill team in high school, the defendant was found to have put her character into issue, so it could therefore be impeached with evidence of her treatment for drug addiction).

102. See Spencer v. McDonald, 705 F. App'x 386, 388-89 (6th Cir. 2017) (reasoning that even if the bolstering biographical narrative were considered "character," the plaintiff in Helfrich had opened the door to positive evidence by the defense, as the plaintiff had introduced evidence that he "'was the star of the family' (citing Helfrich v. Lakeside Park Police Dep't, 497 F. App'x. 500, 509-10 (6th Cir. 2012 .

THE COMMON LAW GOT IT MOSTLY RIGHT: PEOPLE EXPLAIN BEHAVIOR IN TERMS OF DISPOSITIONS, BUT THIS IS NOT ALWAYS AN

ERROR

103. See Miguel Angel Mendez, California'sNew Law on CharacterEvidence: Evidence Code Section 352 andthe Impact ofRecent PsychologicalStudies, 31 UCLA L. REv. 1003, 1006 (1984); see also Park, supranote 75, at 720.

104. Lasana T. Harris et al., Attributions on the Brain: Neuro-ImagingDispositional

Inferences, Beyond Theory of Mind, 28 NEUROIMAGE 763, 763 (2005); see also Gopal Sreenivasan, ErrorsAbout Errors:Virtue Theory and TraitAttribution, 111 MIND 47, 47 (2002).

105. See Sreenivasan, supra note 104, at 47. 106. Gilbert Harman, The Nonexistence of Character Traits, 100 PROC. OF THE

ARISTOTELIAN SOC'Y. 223, 223 (2000) (emphasis omitted).

107. See Miguel A. Mendez, CharacterEvidence Reconsidered: "People Do Not Seem to Be PredictableCharacters,"49 HASTINGS L.J. 871, 878-79 (1998) [hereinafter Mendez, CharacterEvidence].

108. See Bertram Gawronski, Theory-Based Bias Correction in Dispositional Inference: The FundamentalAttribution Error is Dead, Long Live the Correspondence Bias, 15 EUR. REV. OF Soc. PSYCH. 183, 183 (2004).

109. See Christopher Bauman & Linda Skitka, Making Attributions for Behaviors: The PrevalenceofCorrespondenceBiasin the General Population, 32 BASIC AND APPLIED SOC. PSYCH. 269, 271 (2010); see also McCarthy & Skowronksi, supranote 22, at 330.

110. See Daniel Gilbert & Patrick Malone, The Correspondence Bias, 117 PSYCH.

BULL. 21, 22, 24 (1995).

111. See Jennifer Stanley & Fredda Blanchard-Fields, Beliefs About Behavior Account for Age Differences in the CorrespondenceBias, 66 B. J. OF GERONTOLOGY 169, 169 (2011).

112. See Ames & Fiske, supranote 22, at 599 ("[R]epresenting the world as coherent

and stable makes the world more comprehensible and easier to act on.").

113. Johnson et al., supranote 49, at 506. 114. See Shelley Johnson Listwan et al., Recidivism Among a White-CollarSample: Does PersonalityMatter?, 43 AUSTRALIAN & NEW ZEALAND J. CRIMINOLOGY 156, 167 (2010) ("[W]e found evidence to support that both personality and sociological variables (i.e., race, employment, SES) are important inpredicting recidivism among our sample.").

115. See Harman, supranote 106, at 223-24. 116. See Sreenivasan, supra note 104, at 50.

117. See id. at 49-50. 118. See Ames & Fiske, supra note 22, at 599. 119. See Melissa A. Koenig et al., Children's Judgments of Epistemic and Moral

Agents: From Situations to Intentions, 14 PERSPS. ON PSYCH. SCi. 344, 344 (2019).

120. See Miles Hewstone, The

'Ultimate Attribution Error'? A Review of the Literature on Intergroup Causal Attribution, 20 EUR. J. OF SOC. PSYCH. 311, 311 (1990) (' [E]xplaining away' outgroup success to good luck, high effort or an easy task .... ").

121. See Duane Wegener & Jason K. Clark, Not All Stereotyping is Created Equal: Differential Consequences of Thoughtful Versus Nonthoughtful Stereotyping, 90 J. PERSONALITY & SOC. PSYCH. 42, 42 (2006); see also Harris et al., supra note 67, at 419.

122. See Jaeger et al., Can We Reduce, supra note 16, at 2. 123. See Nic Hooper et al., Perspective Taking Reduces the FundamentalAttribution

Error, 4 J. OF CONTEXTUAL BEHAV. SCI. 69, 71 (2015).

124. See Bret Wells et al., Inference Making and Linking Both Require Thinking: Spontaneous TraitInference and Spontaneous Trait Transference Both Rely on Working Memory Capacity,47 J. EXPERIMENTAL SOC. PSYCH. 1116, 1124 (2011); see also Ames & Fiske, supra note 22, at 605; see also David Hamilton, et al., Sowing the Seeds of Stereotypes:SpontaneousInferencesAbout Groups, 109 J. OF PERSONALITY & SOC. PSYCH. 569, 583 (2015) (explaining how spontaneous trait inferences about groups can sow the seeds of stereotypes).

125. See Crump, supra note 59, at 626 ("In other words, evidence of repetition of behavior, or propensity, can be good evidence. People who commit armed robberies on particular occasions are more likely to commit them on other occasions. For other kinds of crimes, such as child molestation or heroin possession, the inference of repetition is even stronger; in fact, it is powerful.").

126. See 7 LAURIE K. DORE, IOWA PRACTICE SERIES EVIDENCE § 5.404:6 (2020-2021

ed., 2020).

127. See Susan M. Davies, Evidence ofCharacterto Prove Conduct: A Reassessment ofRelevancy, 27 CRI. L. BULL. 504, 535-36 (1991); see also Park, supranote 75, at 729 (explaining how evidence of past misconduct can be useful).

128. See Joshua A. Markman et al., Recidivism of Offenders Placed on Federal

Community Supervision in 2005: Patternsfrom 2005 to 2010, U.S. DEP'T. OF JUST.: BUREAU OF JUST. STAT. (June 2016), https://bit.ly/3hAGBVZ.

129. See Harris et al., supra note 67, at 419

("Empirical results suggest methodological improvements could increase traits' predictive power if they are used to predict behavior in a specific-enough social context; if the social context from which the trait is inferred (previous context) and the social context that was being predicted (future context) are similar enough, then correlation coefficients rise above the modest mark of +.30, and traits become better predictors."); see also Crump, supra note 59, at 626 (explaining that if cross-situational and cross-temporal consistency are demonstrated, data can be useful in predicting recidivism).

130. See Crump, supra note 59, at 626-27. 131. See FED. R. Evm. 405. 132. See Crump, supra note 59, at 626 ("In other words, evidence of repetition of

behavior, or propensity, can be good evidence.").

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. 134

133. There are serious problems with the way some recidivism data are currently collected, as they put too much weight on whether there is an arrest and prosecution. See Jessica M. Eaglin, Constructing Recidivism Risk, 67 EMORY L.J. 59, 98 (2017) (discussing racial biases reflected in arrest data). Even so, if the base rate is higher, the positive predictive value improves. 134. FED. R. EVID. 403. 135. See Crump, supranote 59, at 628 ("The result is that other crimes are excluded

if they are similar-but not if they are closely similar!").

136. "Since all effective evidence is prejudicial in the sense of being damaging to the party against whom it is offered, prejudice which calls for exclusion is given a more specialized meaning: an undue tendency to suggest decision on an improper basis, commonly but not necessarily an emotional one, such as bias, sympathy, hatred, contempt, retribution or horror." Woods v. Zeluff, 158 P.3d 552, 554 (Utah 2007) (quoting State v.

III. WE WILL USE WHATEVER INFORMATION IS AVAILABLE TO INFER

CHARACTER AND ASSESS BLAME

Maurer, 770 P.2d 981, 984 (Utah 1989 . My thanks to John Nielsen for directing me to this case.

137. See Sreenivasan, supra note 104, at 50. 138. See, e.g, State v. Williams, 87 S.W.2d 175, 180 (Mo. 1935); see also Taylor v.

State, 262 S.W.3d 231, 243 (Mo. 2008).

139. Larry Laudan & Ronald J. Allen, The Devastating Impact of Prior Crimes

Evidence and Other Myths of the Criminal Justice Process, 101 J. CRM. L. CRIMINOLOGY 493, 497-99 (2011).

140. See Pizarro & Tannenbaum, supranote 29, at 95. 141. See Augusto Blasi, BridgingMoral Cognition and MoralAction: A Critical Review ofthe Literature,88 PSYCH. BULL. 1, 1 (1980) ("[M]orality ultimately lies in action and that the study of moral development should use action as the final criterion.").

142. See Eric Luis Uhlmann et al., A Person-CenteredApproach to MoralJudgment,

10 PERSP. ON PSYCH. SCI. 72, 73 (2014).

143. See Pizarro & Tannenbaum, supranote 29, at 95. 144. See Jennifer Ray et al., The Role ofMoralityin Social Cognition,in THE NEURAL

BASES OF MENTALIZING 554-55 (Michael Gilead & Kevin N. Ochsner eds., 2021).

145. See Pizarro & Tannenbaum, supra note 29, at 95. According to Pizarro, virtue ethics is experiencing a resurgence. See id. Empirical evidence demonstrates lay people place a great deal of value on moral character when determining who ought to be responsible and who ought to be blamed. See id. 146. Uhlmannet al., supra note 142. 147. See Ray et al., supranote 144, at 95. 148. Uhlmann et al., supranote 142, at 72; see also Jennifer Siegel et al., Inferences About Moral Character Moderate the Impact ofConsequences on Blame andPraise, 167 COGNITION 201, 202 (20 17).

149. Uhlmann et al., supra note 142, at 72. 150. See Harman, supra note 106, at 224. Contra Maria Merritt, Virtue Ethics and Social Psychology of Character (2020) (Ph.D. dissertation, UC Berkeley) (on file with author).

151. Peter B.M. Vranas, The Indeterminacy Paradox: Character Evaluations and

Human Psychology, 39 Nous 1, 1 (2005).

152. Id. at 29 (emphasis omitted). 153. See Janice Nadler & Mary-Hunter McDonnell, Moral Character,Motive, and the Psychology of Blame, 97 CORNELL L. REV. 255, 279-82 (2012) (discussing data that ratings of responsibility for transgressions are tied to the actor's perceived moral character).

154. See Pizarro & Tannenbaum, supranote 29, at 97. 155. See Ray et al., supranote 144, at 556. 156. See id. ("[T]here is a close, bi-directional relationship between inferring mental

states and attributing stable traits.").

157. See Clayton Crithcer et al., Moral Character Evaluation: Testing Another's

Moral-CognitiveMachinery, J. OF EXPERIMENTAL SOC. PSYCH., Mar. 2020, at 1, 13.

158. Ray et al., supra note 144, at 556.

159. See Mark A. Thornton et al., The Brain RepresentsPeople as the Mental States

They HabituallyExperience, NATURE COMMC'NS ., May 23, 2019, at 1, 22.

160. See Ray et al., supranote 144, at 556. 161. See generally Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 PSYCH. REV. 814, 815 (2001) (explaining Haidt's model of moral judgments as resulting from "quick, automatic evaluations (intuitions)" despite our "experience[ing an] illusion of objective reasoning"). 162. See Mark Alicke, Culpable Causation,63 J. PERSONALITY & Soc. PSYCH. 368, 376-77 (1992) (explaining culpable causation as perhaps being caused by an "observer's affective reaction to an actor's nefarious motives, an actor's reckless behavior, or the degree of harm produced, [which] instills an active desire to place a 'stain' on the source

of the emotional response. A relatively direct way to validate this stain on the actor's character is to exaggerate his or her causal influence on the harmful outcome.").

163. See Nadler & McDonnell, supra note 153; see also Joshua Knobe & Scott Shapiro, ProximateCauseExplained:An Essay in ExperimentalJurisprudence,88 U. CHI. L. REV. 165, 184-85 (2020).

164. See Knobe & Shapiro, supranote 163, at 184 n.59. 165. See Pizarro & Tannenbaum, supra note 29, at 98; see also Rajen Anderson et

al., A Theory ofMoral Praise,24 TRENDS COGNITIVE SCI. 694, 694 (2020).

166. See Ray et al., supranote 144, at 556. 167. Micaela Maria Zucchellia et al., Intentionality Attribution and Emotion: The

Knobe Effect in Alexithymia, COGNITION, Oct. 2019, at 1.

168. See Robert L. Woofolk et al., Identification, SituationalConstraint,and Social Cognition: Studies in the Attribution of MoralResponsibility, 100 COGNITION 283, 297 (2006).

169. See id. at 299; see also Steve Guglielmo, Moral Judgment as Information

Processing:An IntegrativeReview, 6 FRONTIERS PSYCH. 1, 7 (2015).

170. See Pizarro & Tannenbaum, supranote 29, at 100. 171. See Joshua Knobe, IntentionalAction and Side Effects in OrdinaryLanguage, 63 ANALYSIS 190, 193 (2003); see also Joshua Knobe, Intentional Action in Folk Psychology:An ExperimentalInvestigation, 16 PHIL. PSYCH. 309, 309 (2003).

172. See Markus Kneer & Sacha Bourgeois-Gironde, Aens Rea Ascription, Expertise

andOutcome Effects: ProfessionalJudgesSurveyed, 169 COGNITION 139, 139 (2017).

173. See Siegel et al., supranote 148, at 206-07. 174. Kneer & Bourgeois-Gironde, supranote 172, at 144. 175. See id. 176. See Nadler & McDonnell, supra note 153, at 279-82; see also Thomas Nadelhoffer, BadActs, BlameworthyAgents, andIntentionalActions: Some Problemsfor JurorImpartiality,9 PHIL. EXPLS. 203, 203 (2006). 177. Siegel et al., supranote 148, at 202.

178. See also Thornton et al., supranote 49, at 146. 179. See Uhlmann et al., supranote 142, at 72-81. 180. See David Tannenbaum et al., Moral Signals, Public Outrage, and Immaterial Harms, 47 J. EXPERIMENTAL Soc. PSYCH. 1249, 1253 (2011) ("As a candidate's requests became increasingly frivolous-from a cash bonus to a marble table to a marble table with his face carved into it-participants viewed the request as ever more informative of negative moral characteristics, and opposed hiring the candidate.").

181. Uhlmann et al., supra note 142, at 75. 182. See Jonathan Haidt et al., Moral Dumbfounding: When Intuition Finds No

Reason 11 (Aug. 10, 2000) (unpublished manuscript) (https://bit.ly/2RXuQhY).

183. See Lee & Harris, supranote 28, at 4.

184. See Johnson et al., supra note 49, at 509. 185. See id. 186. See Imwinkelried, The Use, supranote 52, at 587. 187. See id. at 589. 188. See Crump, supra note 59, at 628; see also Hillel Bavli, Objective Chance and the Rule Against CharacterEvidence 6-7 (SMU Dedman Sch. of L. Legal Stud., Research Paper No. 513, 2021).

189. See id. at 628-29; see also D. Michael Risinger & Jeffrey L. Loop, Three Card Monte, Monty Hall, Modus Operandiand "Offender Profiling":Some Lessons ofModern Cognitive Science for the Law ofEvidence, 24 CARDOZO L. REV. 193, 206 (2002).

190. See United States v. Sutton, 41 F.3d 1257, 1259 (8th Cir. 1994); see also People v. Watkins, No. B174012, 2005 WL 1208306, at *3 (Cal. Ct. App. May 23, 2005); see also State v. Costello, 977 A.2d 454, 459-60 (2009).

191. See McCarthy & Skowronksi, supra note 22, at 330. 192. See Sherry F. Colb, Bill Cosby and the Rule Against Character Evidence,

VERDICT (Jan 15, 2016), https://bit.ly/3hQaEZL.

193. See Holly Yan et al., Bill Cosby Admitted to Getting Quaaludes to Give to

Women, CNN (July 7, 2015, 11:42 PM), https://cnn.it/3wwXZyU.

194. See Lawrence Crook III et al., Bill Cosby JurorSpeaks: "We HadNo Real New

Evidence," CNN (June 23, 2017, 2:40 PM), https://cnn.it/3yEtkBB.

195. See id. 196. See Stephen Carter, Bill Cosby's PriorBadActs' -What Will a Jury Hear?, CHI. TRIB. (Jan. 5, 2016, 4:48 PM), https://bit.ly/3fH9eyb; see also In Support ofAmending Utah's Rules of Evidence To Create Presumptive Admissibility [of] Similar Crimes Evidence in Sexual Assault Cases: Hearing Before the Utah Supreme CourtAdvisory Committee (Oct. 13, 2020) (testimony of Professor Paul G. Cassell).

197. See Graham Bowley, Bill Cosby Returns to Court.Here's Why HisRetrialIsNo

Repeat.,N.Y. TIMES (April 8, 2018), https://nyti.ms/3fMlV8c.

198. See Douglas A. Brownridge, Violence Against Women Post-Separation, 11

AGGRESSION AND VIOLENT BEHAV. 514, 516-19 (2006).

199. See Lee & Harris, supranote 28, at 3. 200. See Thornton et al., supranote 49, at 140-48. 201. See McCarthy & Skowronksi, supra note 22, at 321.

202. See Yuki Shimizu et al., Culture asAutomatic Processesfor Making Meaning: Spontaneous TraitInferences, 69 J. EXPERIMENTAL SOC. PSYCH. 79, 83 (2017) ("Given the likelihood that infants' social perceptions are spontaneous, STI may be fundamental and universal for humans." (citing Renee et al., Psychological Reasoning in Infancy, 67 ANN. R. PSYCH. 159, 159-86 (2016 .

203. See Jasmine Norman & Jacqueline Chen, Consequences of Being Unable to Categorize: The Impact of Racial Ambiguity on Spontaneous Trait Inferences 3 (June 2019) (unpublished manuscript) (https://bit.ly/344ZBDR). 204. See Mende-Siedlecki, supra note 20, at 74. 205. McCarthy & Skowronksi, supranote 22, at 321. 206. See Jaeger et al., CanPeople Detect, supranote 5, at 16. 207. See Neil Hester & Kurt Gray, The Moral Psychology of Raceless, Genderless

Strangers, 15 PERSP. ON PSYCH. SCI. 216, 218-19 (2020).

208. See Jaeger et al., Can We Reduce, supranote 16, at 1; see also Hamilton et al.,

supranote 7, at 569.

209. See Alexander Todorov et al., Evaluating Faces on Trustworthiness After Minimal Time Exposure, 27 SOC. COGNITION 813, 819 (2009) [hereinafter Todorov et al., EvaluatingFaces].

210. See Michael Lupfer et al., How Pervasive is the Negativity Bias in Judgments Basedon CharacterAppraisal?,26 PERSONALITY & SOC. PSYCH. BULL. 1353, 1363 (2000); see also Clayton Critcher et al., How Quick DecisionsIlluminateMoral Character,4 SOC. PSYCH. & PERSONALITY SCI. 308, 308 (2012).

211. See Uhlmann et al., supranote 142, at 74. 212. See Bastian Jaeger et al., Who Judges a Book by Its Cover? The Prevalence, Structure, and Correlates of Lay Beliefs in Physiognomy 3 (June 4, 2020) (unpublished manuscript) (https://bit.ly/3uLxvbF).

213. See Evan Westra, Characterand Theory ofMind: An IntegrativeApproach, 175

PHIL. STUD. 1217, 1221 (2018); see also Uhlmann et al., supranote 142, at 72.

214. See Manuel Oliveira et al., Dominance and Competence Face to Face: DissociationsObtainedwith a Reverse CorrelationApproach, 49 EUR. J. SOC. PSYCH. 413, 413 (2018).

215. See Nikolaas N. Oosterhof & Alexander Todorov, The FunctionalBasisofFace

Evaluation 105 PROC. NAT'L ACAD. SCI. 11087, 11091 (2008).

216. See Todorov et al., EvaluationFaces,supranote 207, at 814. 217. Westra, supranote 213, at 1221. 218. See Westra, supra note 213, at 1221; see also Uhlmann, et al., supra note 142, at 72 ("[P]eople quickly and easily attribute morally good or bad traits to others ... with limited information." (citing Geoffrey P. Goodwin et al., Moral Character Predominates in Person Perception andEvaluation, 106 J. PERSONALITY & SOC. PSYCH. 1, 1-21 (2014);

Alexander Todorov et al., UnderstandingEvaluation ofFaces on Social Dimensions, 12 TRENDS COGNITIVE SCI. 455, 455-60 (2008 .

219. See Todorov et al., EvaluatingFaces,supranote 207, at 814. 220. Richard J. W. Vernon et al., ModelingFirstImpressionsfrom Highly Variable

FacialImages, 111 PROC. NAT'L ACAD. SCIs. E3353, E3353 (2014).

221. See Hester & Gray, supranote 207, at 218-19. 222. See Clare Sutherland et al., Face Gender and StereotypicalityInfluence Facial

Trait Evaluation: Counter-StereotypicalFemale Faces Are Negatively Evaluated, 106 BRIT. J. PSYCH. 186, 190 (2015).

223. See Jaeger et al., Can We Reduce, supranote 16, at 5. 224. See Ryan Stolier et al., The Conceptual Structure of Face Impressions, 115

PNAS 9210, 9210 (2018); see also Hester & Gray, supra note 205, at 218-19.

225. See Leslie Zebrowitz & Susan McDonald, The Impact of Litigants' BabyFacednessandAttractiveness on Adjudications in Small Claims Courts, 15 LAW & HUM. BEHAV. 603, 603 (1991) ("As plaintiffs increased in attractiveness, defendants were more likely to lose the case. Also, as defendants increased in baby-facedness, they were more likely to win cases involving intentional actions and less likely to win cases involving negligent actions .... ").

226. See Quiling Luo et al., The NeuralCorrelatesofIntegratedAesthetics Between Moral and FacialBeauty, 9 SCI. REPS. 1, 1 (2019); see also Michael Efran, The Effect of PhysicalAppearance on the Judgment ofGuilt, InterpersonalAttraction, and Severity of RecommendedPunishmentin a Simulated Jury Task, 8 J. RES. PERSONALITY 45, 45 (1974).

227. This region of the brain is also implicated in many other forms of reward as well

as appreciating music, food, or art.

228. See Luo et al., supranote 226, at 7. 229. See Ambady & Rosenthal, supranote 15, at 431. 230. See Bastian Jaeger et al., FacialAppearance and Electoral Success of Male Italian Politicians: Are Trustworthy-Looking Candidates More Successful in Corrupt Regions?, 51 Soc. PSYCH. 1, 6 (2021).

231. See Johnson et al., supra note 49, at 506. 232. See Jennifer Kubota et al., The Neuroscience of Race, 15 NATURE NEUROSCIENCE 940, 943 (2012); for other paradigms testing the neural correlates of racial biases during trust games, see Damian Stanley et al., Race and Reputation: Perceived Racial Group TrustworthinessInfluences the Neural Correlatesof Trust Decisions,PHIL. TRANS. ROYAL Soc. 744, 750 (2012).

233. See Hester & Gray, supranote 205, at 218. 234. See David M. Amodio, The Neuroscience of Prejudice and Stereotyping, 15

NATURE REVS. NEUROSCIENCE 670, 670 (2014).

235. See Meifang Wang & Feng Yang, The Malleability of Stereotype Effects on Spontaneous TraitInferences: The ModeratingRole ofPerceivers'Power, 48 SOC. PSYCH. 3, 3 (2017).

236. See Laudan & Allen, supra note 139, at 499-500 ("[H]aving prior crimes turns out to be one of the strongest predictors of a guilty verdict that we have available, stronger even than the testimony of an eyewitness to the crime who fingers the defendant. And it remains a powerful predictor of the jurors' verdict even when the jurors have not been informed of its existence." (citing Martha A. Myers, Rule Departures and Making Law: Juriesand Their Verdicts, 13 LAW & SOC'Y REv. 781, 792-93 (1979 .

237. See MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE

AGE OF COLORBLINDNESS 137-48 (2010).

238. See Shimizu et al., supra note 202, at 83 ("Our results suggest that STIs are

universal and culture specific." (emphasis omitted .

239. See Ana I. Gheorghiu et al., A Thin Slice of Science Communication: Are People'sEvaluationsofTED Talks Predictedby SuperficialImpressionsofthe Speakers?, 11 SOC. PSYCH. & PERSONALITY SCI. 117, 118 (2020).

240. See Alexander Todorov et al., Inferences of Competence from FacesPredict Election Outcomes, 308 Sci. 1623, 1624 (2005) [hereinafter Todorov et al., Inferencesof Competence].

241. See McCarthy & Skowronksi, supra note 22, at 330. 242. See Lee & Harris, supranote 28, at 4. 243. Norman & Chen, supranote 203, at 5. 244. See Jonathan B. Freeman & Kerri L. Johnson, More Than Meets the Eye: Split-

Second Social Perception, 20 TRENDS COGNITIVE Scis. 362, 362 (2016).

245. See Vernon et al., supranote 220, at E3353. 246. See Joshua D. Greene, The Rat-a-GoricalImperative:Moral Intuition and the

Limits ofAffective Learning, 167 COGNITION 66, 67-68 (2017).

247. See Pascal Molenberghs & Winnifred R. Louis, Insights FromfNIRI Studies Into Ingroup Bias, 9 FRONTIERS PSYCH. 1, 5-6 (2018); see also Jay J. Van Bavel et al., Modulation of the Fusiform Face Area Following Minimal Exposure to Motivationally Relevant Faces: Evidence of In-Group Enhancement (Not Out-Group Disregard), 23 J. COGNITIVE NEUROSCIENCE 3343, 3352 (2011).

248. See Jaeger et al., Can We Reduce, supra note 16, at 2. 249. See Mende-Siedlecki, supra note 20, at 74. 250. See Jaeger et al., Can We Reduce, supra note 16, at 2. 251. See id. at 1. 252. McCarthy & Skowronksi, supra note 22, at 330. 253. Id. 254. See Jordan R. Axt et al., Reducing Social Judgment Biases May Require Identifyingthe Potential Source ofBias, 45 PERSONALITY & SOC. PSYCH. BULL. 1232, 1250 (2019).

255. See id. at 1247.

256. See Greene, supra note 244, at 68. 257. See Jaeger et al., Can We Reduce, supranote 16, at 2. 258. See Sara C. Verosky et al., Robust Effects of Affective Person Learning on EvaluationofFaces, 114 J. PERSONALITY & SOC. PSYCH. 516, 516 (2018) ("A more reliable source of information is affective person learning based on others' past actions.").

259. See Alexander Todorov & Ingrid R. Olson, RobustLearning ofAffective Trait Associations with FacesWhen the HippocampusIs Damaged,ButNot When the Amygdala and Temporal Pole Are Damaged, 3 SOC. COGNITIVE & AFFECTIVE NEUROSCIENCE 195, 195 (2008); see also Eliza Bliss-Moreau et al., Individual Differences in Learning the Affective Value of Others Under Minimal Conditions, 8 EMOTION 479, 490 (2008) (explaining how having either an extraversion and neuroticism disposition may influence how this updating occurs).

260. Baron et al., supranote 19, at 579 n.266. 261. See Chua & Freeman, supra note 5, at 1.

262. See Verosky et al., supra note 258, at 525-26. 263. See Chua & Freeman, supra note 5, at 1; see also Anna Eiserbeck & Rasha Abdel Rahman, Visual Consciousness ofFacesin the Attentional Blink: Knowledge-Based Effects of Trustworthiness Dominate Over Appearance-Based Impressions, 83 CONSCIOUSNESS & COGNITION 1, 10 (2020).

264. See Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (en banc). 265. See Mende-Siedlecki, supra note 20, at 73; see also David Trafimow et al., The Role of Affect in Determining the Attributional Weight of Immoral Behaviors, 31 PERSONALITY & Soc. PSYCH. BULL. 935, 935 (2005); see also Johnson et al., supra note 49, at 510 (explaining how research produced little evidence that participants weighted uncertain non-moral traits (e.g., poor eyesight) in predictions).

266. See Trafimow et al., supra note 265, at 935.

267. See Douglas S. Krull &Jody C. Dill, Do Smiles ElicitMore InferencesThan Do Frowns? The Effect of Emotional Valence on the Productionof SpontaneousInferences, 24 PERSONALITY & SOC. PSYCH. BULL. 289, 289 (1998).

268. See Lupfer et al., supra note 210, at 1362. 269. Jonathan Haidt & Selin Kesebir, Morality, in HANDBOOK OF SOC. PSYCH. 797,

813 (Susan T. Fiske & D. Gilbert eds., 5th ed. 2010).

270. See Jay J. Van Bavel et al., The Importance ofMoral Construal:Moral Versus Non-Moral Construal Elicits Faster,More Extreme, UniversalEvaluations of the Same Actions, PLOS ONE, November 28, 2012, at 1, 12.

271. See Trafimow et al., supranote 265, at 945. 272. See Mende-Siedlecki, supra note 20, at 73. 273. See Lupfer et al., supra note 210, at 1354. 274. See id. at 1354.

275. See Marco Brambilla, et al., Changing Impressions: Moral Character

Dominates Impression Updating, 82 J. EXPERIMENTAL Soc. PSYCH. 64, 65 (2019).

276. Imwinkelried, Some Comments, supra note 83, at 37.

277. For the contrary view that psychology has no place in considerations of character, see Blinka, supra note 54, at 89 (2013). However, the idea that character is a social construct, as articulated in Professor Blinka's Article, see id, suggests that social psychology might indeed correctly inform how character is assessed.

278. See Bertram F. Malle & Sarah E. Nelson, Judging Hens Rea: The Tension Between Folk Concepts andLegal Conceptsoflntentionality, 21 BEHAV. SCIS. & THE LAW, 563, 580 (2003).

279. A similar reform has been previously discussed by scholars such as Roger Park

and David Leonard. See Park, supranote 75, at 777.

280. Criminal Justice Act, 2003, c.44, § 101(3) (U.K.); see also Goudkamp, supra

note 81, at 124.

281. For example, in one case, the term "reprehensible behavior" was considered ambiguous because the behavior was not disapproved of. See, e.g., R v. Weir (Manister), [2005] EWCA (Crim) 2866, [2006] 1 WLR 1885 (Eng.), reprintedin Goudkamp, supra note 81, 122-23. In a child molestation case, to prove that the defendant had a sexual interest in young girls, the prosecution introduced evidence of his sexual relationship with a 16-year-old when he was 34. See id. The reviewing court found that this was not "reprehensible" as the relationship was not disapproved of by her parents. See id. However, under my rule, this would likely still be considered immoral based on a substantial subsect of the population.

282. See Barrett J. Anderson, Recognizing Character: A New Perspective on CharacterEvidence, 121 YALE L.J. 1912, 1953 (2012). For a discussion of the extensive history and potential pitfalls of imposing a related standard of "moral turpitude" in immigration and voting rights, see Julia Ann Simon-Kerr, MoralTurpitude, 2012 UTAH L. REV. 1001, 1020 (2012). However, as the rule here presumes exclusion rather than admission based on the moral valence of the evidence, morality is less likely to be used in a cursory fashion to enforce racist social norms.

283. In some early cases, it was recognized that in "close call" cases, the accused's good character evidence should be admitted because of its considerable probative value. See Davison's Trial (1808) 31 How. St. Tr. 99, 216 (KB), reprintedin WIGMORE, supra note 84, at 1169; see also Jennifer S. Hunt & Thomas Lee Budesheim, How Jurors Use andMisuse CharacterEvidence, 89 J. APPLIED PSYCH. 347, 354 (2004).

284. In the United Kingdom, for example, evidence that a man shouted at his wife when not taking schizophrenia medications was not considered "reprehensible," so it could come be admitted subject to regular evidence rules. This is certainly not kind behavior, but it is probably not immoral either. See R v. Osboume [2007] EWCA (Crim) 481 (Eng.), reprintedin Goudkamp, supranote 81, at 126.

285. This is important, as people who are dehumanized or socially marginalized are often not perceived to be capable of feeling complex emotions like shame or guilt. See Nick Haslam & Steve Loughnan, DehumanizationandInfrahumanization,65 ANN. REV. PSYCH. 399, 416 (2014); see also Brock Bastian & Nick Haslam, ExperiencingDehumanization: Cognitive andEmotionalEffects ofEveryday Dehumanization, 33 BASIC & APPLIED SOC. PSYCH., 295, 299 (2011).

286. See Jonathan Haidt & Craig Joseph, The MoralMind: How Five Sets ofInnate Intuitions Guide the Development ofMany Culture-Specific Virtues, and PerhapsEven Modules, in 3 THE INNATE MIND: FOUNDATIONS AND THE FUTURE 367, 367 (Peter Carruthers, Stephen Laurence, & Stephen Stich eds., 2006).

287. See id. at 383. 288. See id. 289. See id. 290. See id. at 384. 291. See id.

292. Mendez, CharacterEvidence, supranote 107, at 884. 293. Of note here, evidence of a victim's past sexual history would likely always be excluded under my proposed rule, even in states that have not passed a specific "rape shield" statute. Given that promiscuity in women is considered immoral, is triggered by hostile sexism, and is not relevant to whether the victim consented to rape in this particular case, evidence of the victim's past sexual history should always be excluded as unfairly prejudicial under my proposed rule. Additionally, evidence such as addiction, past unrelated crimes, or other immoral traits should always be excluded if it is of meager probative value and only used to smear the witness's credibility or prove an ancillary fact. 294. See United States v. Castillo, 140 F.3d 874, 884 (10th Cir. 1998) ("[B]ecause of the sensitive nature of the balancing test in these cases, it will be particularly important for a district court to fully evaluate the proffered Rule 413 [or 414] evidence and make a clear record of the reasoning behind its findings." (quoting United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998 (alteration in original .

295. See Deborah Tuerkheimer, Incredible Women: Sexual Violence and the

CredibilityDiscount, 166 U. PA. L. REv. 1, 37-38 (2017).

296. See In Support ofAmending Utah'sRules of Evidence to Create Presumptive Admissibility [of] SimilarCrimes Evidence in Sexual Assault Cases:HearingBefore the Utah Supreme CourtAdvisory Committee (Oct. 13, 2020) (testimony of Professor Paul G. Cassell).

297. As discussed briefly above, this proposal invites a revision of FRE 405 as well, instances on direct examination and to allow easily accessible and

to permit specific otherwise admissible extrinsic evidence.

298. See David P. Leonard, Character and Motive in Evidence Law, 34 Loy. L.A. L. REv. 439, 451 (2001) ("Thus, from the perspective of the law of evidence, it is best to

conceive of character as a subset of propensity, embracing only moral aspects of a person.").