Wigmore on Use of Character v Accused

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Professor Peter Tillers
Cardozo Law School

Extract from Section 57 of Wigmore's Treatise on the Law of Evidence (P. Tillers rev., 1983):
Wigmore's Explanation of Prohibition against the Use of Character to Show Guilt of Accused (footnotes & cross-references omitted)

There is just as much probative value in the argument, "A is quarrelsome, therefore he probably committed this assault" as in the argument, "A is peaceable, therefore he probably did not commit the assault"; and this is acknowledged in judicial opinion .... Here, however, a doctrine of auxiliary policy ... operates to exclude what is relevant, the policy of avoiding the uncontrollable and undue prejudice, and the possible unjust condemnation, that such evidence might induce ....

This policy of the Anglo-American law is more or less due to the inborn sporting instinct of Anglo-Normandom — the instinct of giving the game fair play even at the expense of efficiency of procedure. This instinct asserts itself in other departments of our trial law to much less advantage. But, as a pure question of policy, the doctrine is and can be supported as one better calculated than the opposite to lead to just verdicts. The deep tendency of human nature to punish not because our victim is guilty this time but because he is a bad man and may as well be condemned now that he is caught is a tendency that cannot fail to operate with any jury, in or out of court. There are also indirect and more subtle disadavantages.

The rule, then, firmly and universally established in policy and tradition, is that the prosecution may not initially attack the defendant's character.

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