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68 Emory L.J. 441 (2018-2019)
Legitimizing Character Evidence

handle is hein.journals/emlj68 and id is 459 raw text is: LEGITIMIZING CHARACTER EVIDENCE Justin Sevier* ABSTRACT Modern consensus among legal commentators is that character evidence- when used to show that an individual behaved in accordance with her predisposition to commit some act-is an illegitimate form offact-finding proof This consensus is codified in the Federal Rules of Evidence, which forbids the use ofmost propensity evidence at trial. Defenders ofthe ban suggest, without empirical proof that jurors would overvalue the probative worth ofpropensity evidence and that the public would balk at the inclusion of such evidence as a matter of legal procedure. This Article suggests that this view is misguided, its assumptions are incorrect, and that policymakers should consider lifting the ban on propensity evidence. This Article reports the results of three original experiments, which examine the conditions under which the public is willing to legitimize legal verdicts that rely on propensity evidence. The psychological literature suggests that two elements must be satisfied for the public to legitimize an evidentiary rule: (1) the public must perceive the rule as promoting decisional accuracy, such that it increases the likelihood that the factfinder reaches the correct verdict, and (2) the rule must promote procedural justice, such that people believe that the fact finder has reached its decision according to notions of fair play. Social psychology research on person perception suggests that jurors are more competent to evaluate character evidence than legal commentators believe, and research on procedural justice suggests that the inclusion ofpropensity evidence may increase the popular legitimacy of legal verdicts. These experiments, which surveyed over 1,200 participants, support the position that propensity evidence is a legitimate form of trial proof They demonstrate that jurors attend to propensity evidence when it is presented to them, but they afford such evidence significantly less weight than they do most other evidence at trial. Moreover, jurors demonstrate marked competency with propensity evidence: they discriminate between potential accuracy-enhancing Charles W. Ehrhardt Professor of Litigation, Florida State University College of Law. I thank Shawn Bayern, Jeffrey Bellin, Avlana Eisenberg, John C. P. Goldberg, Joni Hersch, Mark Spottswood, Tom R. Tyler, Kip Viscusi, Brandi Yoder, Bryce Yoder, the Florida State University College of Law faculty, and the Yale University Department of Psychology for comments regarding this Article. I also thank Elise Berry, Conor Burns, and Jared Dubosar for their excellent research assistance.

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