The prohibition against using character – either explicitly, when we speak of a person’s traits and tendencies, or indirectly, when we use other acts as a proxy to show character – is longstanding. “By the turn of the nineteenth century, British and American courts were in agreement that prior act evidence introduced for the limited purpose of showing a defendant’s propensity to commit the charged offense should be excluded.” United States v. Caldwell, 760 F.3d 267, 275 (3d Cir. Pa. 2014).
Why? It is not that character has no relevance, but that it is likely to be overvalued. “Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man [or] to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.” FRE Rule 404, Advisory Committee Note.
But “character” is core to the art of story-telling and is gleaned from what the individual does or fails to do. Aristotle wrote in the Poetics that “character determines men’s qualities, but it is by their actions that they are happy or the reverse. Dramatic action, therefore, is not with a view to the representation of character: character comes in as subsidiary to the actions.”
Can these two competing skeins – the ban on character to show action in conformity, and the need for the jury to find character as “subsidiary to the actions[,]” coexist?
At a recent (May, 2018) Educating Advocacy Teachers conference, S. Rafe Foreman, the Douglas Stripp Dean’s Distinguished Professor and Director of Advocacy at UKMC Law School, lectured on and demonstrated story-telling as a means for the jury to deduce the party’s character. In Foreman’s view, stories have a villain and a hero, and in the trial world the jury is the hero when it corrects a wrong or confirms the correctness of an action or decision.
Because the typical story is built around morality and generating a strong like or dislike of one of the principals, Foreman advocates finding the actions that confirm the character trait the lawyer wants the jury to remember. The rest is in the telling – describing, or better yet portraying, acts that can lead to only one conclusion, that this person is villainous.
In our workgroup, an attendee suggested the story of Judas as one with which the technique could be illustrated. Rather than using conclusory terms like “corrupt” or “venal,” Foreman had a volunteer act out Judas’ meeting with the high priests. The volunteer asked “what’s in it for me,” pocketed the money, and explained that the kiss would signal who the guards and crowd were to seize. The jury was left to draw its own conclusion, and it was inevitable – Judas had the character of being dishonest.
Foreman posited another case, one where a surgeon left near the end of an operation and had subordinates finish sewing up the incision, an action that led to a severe injury. Foreman’s story told what the surgeon did next – golfing. While the message in this instance is as powerful as that in the story of Judas, the relevance of where the physician went at the conclusion of surgery is questionable, and might be excluded by a judge because, of course, it sends a character message.
The Evidence Professor in me complimented Professor Foreman, because when the actions to be depicted are intrinsic to the event(s) on trial, there is no conflict with 404(b) – we are not using other acts to show action in conformity. We are doing what lawyers have to do well – telling a story that will be emotionally compelling. The struggle will be with facts like the golf outing – will a judge find that intrinsic, or exclude it as propensity? But that the person left before the job was done clearly comes in, and clearly damns the surgeon’s character.