Character, Liberalism, and the Protean Culture of Evidence Law

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity in evidence law, a historical, more contextualized understanding of character is essential. To that end, this article develops three themes. First, it reviews the doctrinal and policy issues that have famously plagued character evidence, with an eye toward their origins. Second, it explores evidence law’s historical contingency, which is dependent upon prevailing cultural, economic, and social conditions. Third, “character” has changed over time because it is often a cultural, social, and ideological battleground. This social and cultural divide, particularly criticisms of middle-class values, contributes to the law’s angst over character’s meaning and, perhaps, the law’s yearning for a scientific solution

Character, Liberalism, and the Protean Culture of Evidence Law

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity in evidence law, a historical, more contextualized understanding of character is essential. To that end, this article develops three themes. First, it reviews the doctrinal and policy issues that have famously plagued character evidence, with an eye toward their origins. Second, it explores evidence law’s historical contingency, which is dependent upon prevailing cultural, economic, and social conditions. Third, “character” has changed over time because it is often a cultural, social, and ideological battleground. This social and cultural divide, particularly criticisms of middle-class values, contributes to the law’s angst over character’s meaning and, perhaps, the law’s yearning for a scientific solution

The Modern Trial and Evidence Law: Has the Rambling Altercation Become a Pedantic Joust?

This Article places the relationship between evidencerules and the modern trial in a historical context. Thetrial\u27s foundation is in popular culture-lay witnessestestifying before a lay jury. Eighteenth-century trials werea rambling altercation between the defendant and hisaccusers-unruly (literally), unstructured, very brief, andless concerned with the truth than a socially acceptablejudgment. The modern trial\u27s emergence in the nineteenthcentury coincided with the professionalization of law, theactive involvement of lawyers as advocates, and thesprouting of evidence rules to regulate both lawyers andlay juries. Nonetheless, evidence law accommodatedprevailing lay culture in order to foster legitimacy. Trialsnow searched for the truth, but did so in nineteenth-century terms.The problem today is that many of the keyepistemological assumptions of modern evidence law,especially credibility and character, draw from thosenineteenth-century roots. Dissatisfaction with some ruleshas triggered several troubling trends. One fixates onesoteric rules that beget inscrutable, often nonsensical,distinctions. A second embraces psychology and socialscience as a means of fact finding and the polestar for therules themselves. Examples of both trends are drawn fromcharacter evidence, expert testimony, and credibilitydoctrine. Together, these trends reveal the law\u27s discomfort with,and occasional contempt for, contemporary lay thinking.Trials are fast becoming a pedantic joust, inaccessible tothe lay public. Neither sophistic rules nor the lateststyling of social science are the answer. Yet it may well bethat current evidence law poorly reflects modern popularthinking as well. The trial\u27s legitimacy demands thatevidence law effectively mediate between legal institutionsand prevailing social and cultural thought aboutcredibility and human contact

Quantification of the Individual Characterstics of the Human Dentition: Methodology

This study provides a method for comparing six individual human dentition characteristics using the standard measuring tool in Adobe Photoshop CS2 as compared to measuring individual characteristics with an automated software program under development at Marquette University, which has been adapted for bitemark analysis. The algorithm identifies color-specific pixels and automatically calculates the measurements

A Methodology for Three-Dimensional Quantification of Anterior Tooth Width

The use of cone-beam computed tomography (CBCT) technology has been shown to be more accurate in measuring individual incisor tooth widths than the use of wax exemplars. There were fewer differences by investigators using CBCT than others using an F-test in a mixed model of the measurement differences of investigators, wax type, and which tooth was measured. In addition, the frequency of outliers was less in the CBCT method (a total of 5) as compared to the two-dimensional measurements in ether Aluwax (a total of 8) or Coprwax (a total of 12). Both results indicate that CBCT measurements accounted more precisely for tooth width and level of eruption

Quantification of the Individual Characteristics of the Human Dentition

The considerations for admissibility suggested by the Daubert trilogy challenge forensic experts to provide scientific support for opinion testimony. The defense bar has questioned the reliability of bitemark analysis. Under an award from the U. S. Department of Justice, via the Midwest Forensic Resource Center, a two-year feasibility study was undertaken to quantify six dental characteristics. Using two computer programs, the exemplars of 419 volunteers were digitally scanned, characteristics were measured, and frequency was calculated. The study demonstrates that there were outliers or rare dental characteristics in measurements. An analysis of the intra-observer and inter-observer consistency demonstrated a high degree of agreement. Expansion of the sample size through collaboration with other academic researchers will be necessary to be able to quantify the occurrence of these characteristics in the general population. The automated software application, Tom\u27s Toolbox, developed specifically for this research project, could also provide a template for precisely quantifying other pattern evidence

Prior Inconsistent Statements: The Simple Virtues of the Original Federal Rule

How well do hearsay rules function under the current Federal Rules of Evidence? One issue, dormant yet pulsating beneath the surface for decades, involves the admissibility of prior inconsistent statements by witnesses. The long-standing “orthodox” rule admitted the prior statement only to impeach the witness’s trial testimony; it could not be used as substantive evidence of the facts asserted. In 1972, the Advisory Committee on the Federal Rules of Evidence (“the Advisory Committee” or “the Committee”) proposed an innovative rule permitting all prior inconsistent statements to be used both for impeachment and as substantive evidence—a sea change in practice. Congress, however, torpedoed the proposal for reasons that rang hollow in the mid-1970s and which remain so today. Experience has proven the Committee’s wisdom