Teneille Brown: We’re so motivated to diagnose people’s character as either good or bad, that if we can’t hear about the way they’ve acted in the past, we’ll use whatever information is available to us, which could include the way they’re dressed, the way they talk, the way they carry themselves.

Diane Maggipinto: This is 3 in 5, a podcast from the S.J. Quinney College of Law at the University of Utah.

Three questions, five minutes, featuring some of our professors talking about their recent published research. I’m the host, Diane Maggipinto. My guest today

Teneille Brown: I’m Teneille Brown, professor of law at the S.J. Quinney College of Law.. And I’m also a member of the Center for Law and Biomedical Sciences.

Diane Maggipinto: The title of your research borrows from Martin Luther King’s speech in 1968 in Washington, DC, “The Content of Our Character.” Your paper and proposal are about the character evidence rule. Tell us what that is and about your paper.

Teneille Brown: Sure. So probably a little history on what the character evidence rule is. It’s a rule that bans jurors from hearing about someone’s character traits if those character traits are used to say that they acted in accord with the traits.

So what does that mean? Let’s say you were being charged with tax fraud and you had been convicted of tax fraud two times before. In this trial, the jury could not hear about those two past tax fraud convictions, because they’re being used to suggest that you likely committed tax fraud in this case. Or if you were charged, say, like Bill Cosby was with drugging and raping women, this rule would say, the jury cannot hear about the dozens of other women who’ve accused you of the same thing.

It has very noble roots. The common law judges were worried that if the jury heard that you had done this bad thing in the past, they would then judge you unfairly this time around and say, well, because you’re a bad person, you likely did this bad thing again.

This project was really looking at the social psychology literature to show that jurors just can’t do that. Juries cannot not make character inferences. We are so motivated to diagnose people’s character as either good or bad that if we can’t hear about the way they’ve acted in the past, we’ll use whatever information is available to us, which could include the way they’re dressed, the way they talk, the way they carry themselves.

These really well-designed studies were demonstrating that it was just the facial characteristics that were predicting things like outcomes of elections, teaching evaluations, getting jobs or not getting jobs, and even sentencing decisions. There have been three studies in the last couple of years that have shown that these facial inferences can predict whether someone gets a harsher or lighter sentence.

The traditional methods of just telling jurors, “Don’t do this,” I don’t think that’s going to work. These inferences are so subconscious and they happen immediately. I mean, within a 10th of a second of meeting someone we’ve already drawn inferences from their face. This paper is really trying to completely overhaul the character evidence ban.

Diane Maggipinto: Where are you coming from with your research? And what’s the problem now? What is your proposed rule?

Teneille Brown: This rule is the most litigated evidence rule. And it’s the most likely basis for criminal reversal. This is a difficult rule to apply. Is there anything we can do to make it easier to apply so that we have fewer appeals based on this rule?

So that’s part of it. A second basis is, if we’re going to have human beings who are going to be responsible for making these important calls, as we do with jurors, then we need to better understand and reflect the way actual human beings make these decisions. We can’t just assume that by denying jurors this information that they’re going to somehow be able to just not think about someone’s character traits.

In the Bill Cosby case, and in cases where victim credibility is really important, if the first woman who comes forward, the defendant will say, “Well, she’s making it up. She’s lying.” And if you can’t bring in those past acts, it’s very hard to prove that she’s not lying. There are a lot of cases like that, where it excludes too much evidence that would be really helpful. And then on the other side, it admits too much evidence that could be really damning.

And my proposal is trying to make it so that it’s not overly broad or overly narrow, but really trying to get it back to its original purpose, which was to make sure that jurors aren’t saying, well, once a thief, always a thief. Jurors are going to be drawing automatic character inferences, no matter what.

And so wouldn’t it be better to have them base those inferences on the way parties have actually behaved rather than the width of their nose or the color of their skin? The rule I propose would, instead of being mandatory, it would just say that if this is the kind of evidence that we think jurors are going to overvalue, and they’re going to say that because you did this bad thing in the past, you’re much more likely to do it again. And it’s the kind of trait that’s really immoral because that’s what we know from the social psychology literature. That’s what’s going to make it much stickier. Then there’s just a presumption against it being admitted. Judges do this all the time, because there’s a rule called 4 0 3, where they have to balance the probative value with the prejudice and decide if it gets in or not.

And this would just be a flip of that, where it would say the presumption is, it’s not going to get in if it’s an immoral trait and it’s a criminal defendant, but if you can prove that it’s a Bill Cosby type of situation, where it would be really, really useful, because we have a very similar behavior, these are very credible accusations, then they could let it in.

They would just have to do that balancing act. So what happens is the jury is just scrutinizing the defendant’s behavior off stand. All they have to go by is often the physical traits of the criminal defendant.

Diane Maggipinto: I’m curious, what kind of reaction are you getting and feedback about your proposed rule?

Teneille Brown: So it’s a major overhaul and even the Supreme Court has mentioned for 50 years, this rule makes no sense, and have even acknowledged that we probably should be revising it. And yet there just isn’t this will to do so. Surprisingly, when I’ve shared it with evidence scholars, they’ve almost uniformly said, this is really an interesting rule. This is a really important way to revise the rules because they know that right now, it doesn’t make sense.

I just presented some pieces of this research to our Supreme Court and they actually want to hear more. So they asked me to send them the article and I don’t know if it will lead to any change, but I think this goes to the frustration judges have where they recognize that this rule leads to so many appeals.

So I think they would like to see a revision of the rule. And I would be very excited to see how they take up my article.

Diane Maggipinto: That’s 3 in 5 from the University of Utah, S.J. Quinney College of Law..