Character, Liberalism, and the Protean Culture of Evidence Law

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity in evidence law, a historical, more contextualized understanding of character is essential. To that end, this article develops three themes. First, it reviews the doctrinal and policy issues that have famously plagued character evidence, with an eye toward their origins. Second, it explores evidence law’s historical contingency, which is dependent upon prevailing cultural, economic, and social conditions. Third, “character” has changed over time because it is often a cultural, social, and ideological battleground. This social and cultural divide, particularly criticisms of middle-class values, contributes to the law’s angst over character’s meaning and, perhaps, the law’s yearning for a scientific solution