Remarks in WIGMORE

The extent to which the analytical maneuvers described above do indeed take place — viz., the extent to which the character evidence rule is eviscerated by such deceptive naming — is discussed in detail in the various portions of this volume of the Treatise that deal with various aspects of that rule. Those discussions and reflections have led the reviser to conclude that the sort of analytical evisceration suggested here does indeed occur on a large scale. Why? In our discussions of detailed aspects of the character evidence rule, we survey various efforts to make the necessary distinctions in terms of relevancy and reliability rationales, but on the whole we find such explanations inadequate. In our own view, the windings and twistings of the character evidence rule and its various exceptions are largely without rational explanation because those windings and twistings reflect a halfhearted and unprincipled compromise between an interest in truthseeking and a belief that we should not judge people or their acts by their character. The compromise the law makes is unprincipled because the degree to which we depart from the prohibition on evidence of character for the sake of truthseeking is not explicable in terms of truthseeking. (Refusal by some courts to even acknowledge the extent of the effective repudiation of the character evidence rule is surely the most unprincipled compromise of all; this compromise may be fairly described as hypocritical.) The official hypocrisy in which we engage as a society may be powerfully assisted, to be sure, by a dawning but still dim awareness that the distinction we ordinarily draw between character, on the one hand, and other qualities of human beings (shortness, left-handedness, mental agility), on the other hand, lacks intellectual coherence when viewed in a broad perspective since it is possible that we can no longer draw a meaningful moral or ethical distinction between the influence of each of these two types of factors on the probability of an act by a person. (Arguably, either type of evidence is equally offensive — or inoffensive — to human dignity because such evidence implies that a person does not in each situation stand as an entirely free actor.) However, if this is the intellectual difficulty that generates the largely senseless meanderings of the character evidence rule, we should openly confront the question and resolve it as best we can. Otherwise, the courts are doomed to continue their often inadvertently hypocritical efforts to make sense out of nonsense.