Is Character Evidence Even Evidence?

I used to listen to a lot of “criminal justice” podcasts, i.e. podcasts about wrongful convictions.

Specifically, I listened to the entirety of the podcast Undisclosed, after I first heard about them, and the entire genre, through the first season of Serial. Undisclosed investigated numerous cases, examined evidence, helped discover new evidence and, rather remarkably, has helped overturn many of the wrongful convictions they covered (which is not something that can be said for most of these podcasts). I also listened to some others but I always found Undisclosed just did a much better job.

If there’s one thing I’ve learned from listening to too many of these podcasts it’s that people care about character evidence, and eye witness testimony of course, more than they care about actual physical evidence. Now, it’s possible that that the so-called “CSI effect” has changed this as most cases I’ve listened to were originally tried pre-CSI. And with these cases from the pre-CSI days, it’s character evidence that convicts more often than not.

I had forgotten about this to some extent until I started listening to the latest season of In the Dark, a podcast that began as a criminal justice podcast but which has broadened its scope since it was acquired by The New Yorker. (Some seasons are criminal justice, but some aren’t.)

This latest season, titled “Blood Relatives,” is about one of the apparently more notorious crimes in UK history (though my friend who lives there has never heard of it). A diagnosed schizophrenic former model killed most of her family - her parents, her children - and then herself. But her brother has been in jail for the murder for 40 years.

He’s in jail for that long for two reasons, which will surprise nobody who has listened to as many criminal justice podcast as I have.

First, there was just a ton of police incompetence. The main investigator literally had the nickname among Scotland Yard of “Bumbling Ron.” But that police incompetence, though it started with the initial investigation, really took off because of the change in the theory of the case, from the very obvious and Occam’s Razor-supported “she killed her family and herself” to, “even though there’s very little evidence, the brother did it.”

And why did they switch to “the brother did it”? Due to character evidence, of course.

It doesn’t matter he called the police because he was worried about his sister menacing the family. It doesn’t matter the house was locked from the inside. It doesn’t matter she shot herself. It doesn’t matter he arrived at the house after the police. It doesn’t matter there are only two pieces of evidence in the entire crime scene which could possibly suggest someone other than the former model did it. (Both of these pieces of evidence are from police incompetence but I won’t go into them. I will say that neither of them implicate the brother directly, they just implicate someone other than the sister. That is, if they were actual evidence of a different murderer. Which, it turns out, they’re not. Surprise!)

Because the brother acted weird. He didn’t call the cops the “right” way. He didn’t react to the news of his family dying the “right” way. He did “weird” things with the house and their possessions after his family died. He did “weird” things at the funeral. He said “weird” things. And, well, nobody liked him anyway. (He did steal from his family once which is, as we know, the first step towards murdering all of them. That’s always how crime works.)

It’s also important to know he was adopted so who knows what crazy parents caused his birth. You really don’t know with these adopted children do you. (The sister, who did indeed kill her family, was also adopted but nobody cares because she’s been recast as the victim.)

This man has been in jail for 40 years for a crime so obviously committed by his sister it’s almost hilarious. And he’s not been able to win any appeals despite all the evidence showing his deceased sister is the perpetrator. And that’s because of character evidence.

It reminds me a tiny bit of the most insane season of Undisclosed, where the prosecution claimed someone who was literally on the other side of a Great Lake from the crime at the time of the crime somehow committed the crime without any evidence and the jury was like “Yeah sure, sounds right” because they didn’t like the dude. (In that season, he supposedly rented a private plane and flew across Lake Michigan and back. There was zero evidence of this having happened and nobody cared - not the jury, not the judge, not the media, not the public. Nobody liked him and he was weird so he must have done it.)

So that’s what this case comes down to: feelings about somebody. This man’s family hated this guy’s guts. (They also profited from his conviction and nobody seems to care about that either.) And so they, and his ex-girlfriend, who was caught lying, all testified that he’s a horrible person. And so now he’s in jail. Due to character evidence. (And the cops and the judge really messing up a piece of a supposed physical evidence. But they wouldn’t have got there without the character assassination that occurred after his family discovered the physical evidence. Yes, that’s right: the people who inherited the money found the thing that incriminated the brother, no the police. You cannot make this stuff up.)

To me, this is totally insane and not how any justice system should work. (I should note that I don’t blame the jury here. They were told the something about a piece of evidence that was just not true. It’s not their fault. It is the fault of the Essex Police, Scotland Yard, the prosecution, the judge, and the appeals courts, though. Not to mention this man’s greedy family.)

What is Character Evidence?

So what is character evidence?

Wikipedia defines character evidence as “any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person.”

And how it’s submitted into evidence depends on the jurisdiction. I know nothing about how the UK’s criminal justice system works and, because I don’t listen to these types of podcasts much any more, I’ve forgotten much about how it works in the US. But, basically, it usually amounts to the prosecution attempting to put someone on the stand who will say something bad about the accused, and the defense putting someone on the stand who will say something good about the accused. Whether or not that testimony - it’s nearly always testimony - is accepted depends on the jurisdiction and how good or bad the judge is. (As well as how competent the defense lawyers are, which is always a problem. Though this podcast hasn’t gone into it, it does sound like the original defense barristers did a really bad job.)

As you might be able to tell, I am a strong believer in “innocent until proven guilty.” I actually take it seriously. It feels like I am in a minority whenever I encounter a wrongful conviction podcast or TV or film documentary, though, as I always find their are people convinced of the accused’s guilt because of something in their character.

I remember watching Making a Murderer and being shocked by the number of people on social media still convinced of Steven Avery’s guilt. I mean, you can believe what you want about anybody. But the idea that you could watch that documentary and think the prosecution acted properly is wild to me. And when I see people react to Avery as if he has to be guilty, I worry people don’t understand how the system is supposed to work. The job of the state (in the US and Canada) is to prove guilt beyond a reasonable doubt. If they don’t, or if they get up to shenanigans, as the cops often do, then it doesn’t matter if you don’t like the accused, they should never be found guilty in those circumstances, no matter how much your gut is telling you they should.

You know what your gut is? It’s a worse version of the character evidence I’m complaining about because you don’t even know the accused, you’ve just watched a documentary about them or listened to a podcast.

So let’s get into why I think character evidence is mostly bullshit. But first, let’s briefly talk about when it’s not bullshit. Which is probably a lot of the time.

Is there ever a good time for Character Evidence?

To this I would answer yes, of course. There are numerous occasions when character evidence is probably very reliable.

For example, if someone is accused of theft and there a whole bunch of people willing to testify that they have seen this person take things without permission or talk about doing so, this strikes me as a completely reasonable use of character evidence.

If someone is accused of rape and there are a bunch of people willing to testify that they have seen this person act really aggressive towards women, this strikes me as a completely reasonable use of character evidence.

When I was in university, a friend was raped by another friend. Most of our friends took her side. I took “nobody’s side” - I was neutral, I was so far above everyone else in my objectivity, I was the adult - which amounted to taking his side, even though I didn’t believe that at the time. Deep down, though, I knew he did it. I “knew” that because I knew him and had seen the way he behaved towards women (and even men on occasion). I also knew he was drinking and doing coke. Though I was obviously not in the room, nor was anyone but the victim and the perpetrator, I had a strong suspicion that she was telling the truth. I could easily imagine it happening.

Now my opinion, had I been willing to admit it to the police if she had gone to them, might have been very prejudicial to him. After all, he and I used to fight. (We were roommates.)

The thing is, everyone thought he did it. Or nearly everyone. We could all imagine him doing it. And so, if she had chosen to go to the police, there would have been all these people willing to say “yeah, of course he would not listen to “no” if he was drunk and high.” We’d all seen him in action around women.

The important caveat with rape and sexual assault is that rapists are very rarely successfully prosecuted. So there’s more reason to use character evidence in these cases even than with the hypothetical theft example above.

To me, as long as the character evidence matches the crime the person is accused of, it makes sense.

Character Evidence of Murder?

The problem with murder is that, most of the time, the person accused of murder has not actually killed people before or attempted to kill people before.

How often is the character evidence presented at murder trials evidence of violent physical assault? In my sample, which is admittedly biased to wrongful convictions and is a tiny sample of all the murder trials in the United States, the answer is almost never. Off the top of my head, I can remember literally one case in which the accused had supposedly committed assault prior to being accused of murder. (And, in this case, like every other case I’m thinking of when I complain about character evidence, there was actually no evidence he had committed the pet murder the entire town thought he had committed.)

And despite how often people believe “slippery slope” arguments about people and ideas, they are usually complete nonsense. No, people don’t often graduate from theft to murder. If that was true, there would be way more murders. Minor crimes are not a gateway drug to major crimes for the vast majority of criminals. They are occasionally, of course, but they aren’t most of the time because, again, if they were, there would be way more murder and kidnapping and the like.

So now let’s go on to why I think character evidence is mostly bullshit.

People lie

If there’s one thing I think I’ve learned in my four-plus decades of life, that I feel like is a rule of human existence, it’s that people lie.

People lie about big things. People lie about small things.

People lie for good reasons. People lie for bad reasons. People lie for no reason.

People “bend the truth,” making tiny little changes to a story to suit their preferred narrative with the net effect that the story is still mostly true. And people fabricate entire stories with no basis in reality.

It’s not really up for debate whether or not people lie. And it shouldn’t be controversial to say people lie. We all experience people lying all the time.

What matters for a criminal trial - and for us more broadly as a society - is not whether or not someone lies but rather how they lie and what they lie about.

Take, for example, the infamous “jailhouse snitch.” In the vast majority of cases, these people are unreliable not just because they are criminals, and it’s reasonable to assume criminals are more inclined to lie, but because they are almost always getting something in return for their testimony.

On the other hand, if someone is found by the police who may have witnessed or heard something, and the police have to cajole this person to even talk to them about the case, one can presume the person is probably telling the truth, or at least trying to.

The problem with character evidence is that it’s almost always testimony and that means it’s people telling the judge and jury about the accused. And that means that, regardless of the person, it will contain at least a little bit of untruth. But it could contain a lot.

In the case I am complaining about today, the cousins of the convicted man stood to inherit the man’s estate if he went to jail. That is what I would call a good reason to lie, even if they didn’t actually “lie” in the intentional sense, but just created narratives in their mind to convince themselves his behaviour was “weird” or “abnormal.” Also, they already intensely disliked him and claimed to like his (diagnosed schizophrenic) sister. Maybe they changed their minds about the sister once she died, as people routinely do, or maybe they always liked her more. Regardless, the cousins didn’t like him already and they stood to gain from thinking he was guilty. So they testified about his character and helped convince the jury there was something wrong with him. (They also found the piece of evidence that convicted him which, I believe, makes it much more likely they knew they were lying.)

In the vast majority of wrongful conviction media I have listened to, someone comes forward to say something bad about the accused. That bad thing usually has nothing to do with murder, rather its proof of their “low character” or their badness. In this case, the brother stole money from his parents (and copped to it) but there was also lots of testimony about beahviour that would have been totally normal to people who weren’t motivated to interpret it as bad or even “evil."

You know what doesn’t lie? Physical evidence.

And there’s always physical evidence.

Cops and lawyers complain about the “CSI effect.” But it’s a good thing juries want more physical evidence than they used to. If anything, that should be causing the police, forensic scientists and prosecuting attorneys to aspire to make better cases. Instead, so many still opt for character evidence because they aren’t good at getting, or preserving, the physical evidence.

In this case, the police were incredibly incompetent meaning that there was basically no physical evidence of the crime by the time they decided to prosecute the brother. The police altered the crime scene before the photos were taken, they burned (yes, burned) a ton of physical evidence before the theory of the case changed meaning there was basically no evidence to use at trial. (They did this, supposedly, to make the house more habitable for, you’ll never guess who. Yes, that’s right, the cousins.) And the chain of custody was so bad with the one remaining piece of physical evidence that nobody’s even sure of how many pieces there actually were.

And that’s the problem with lying. Because the police and prosecution lied about all of this at trial and the jury didn’t know. And they the prosecution put on some character witnesses who were motivated to lie, whether or not they knew they were lying.

People have bad memories

One reason people bend the truth is that we have really bad memories. We think we have great memories but we really don’t. We remember things how we want to remember them not necessarily how they happened. (See, for example, this book. But there are numerous studies showing we’re less good at remembering than we think, and that we reconstruct our memories.)

And this is especially true where we have a reason to remember things a certain way that serves our story about ourself or some other story we want to believe.

I got a really good lesson about this from the Ontario Science Centre when I was a kid. When it was located at its original site, it was in this really cool building that flowed down the side of the Don Valley. So the entrance was at road level and then there were numerous floors down the side of the valley, with the exhibits.

The ticket office was at street level and sometimes there were lines. So, to entertain people while they waited to buy tickets or be admitted, there were a few exhibits in the lobby at the top of the building.

One of those exhibits was a crime exhibit. You’d go into this mini theatre and watch a purse snatching. Then you’d be asked to identify the purse snatcher.

While I waited for my parents to buy tickets, I’d go in this theatre, so I knew who did it after the first few visits. But what I would say is that it taught me that I didn’t remember what happened even though I had just watched the purse-snatching. And I experienced it at such a young age it made a big impression on me. (More than any other exhibit there, I think.)

So, unlike a lot of people, I don’t find the scientific evidence showing humans have bad memories to be offensive. To me it makes perfect sense.

And so it makes sense to me that lots of people are extremely confident about their bad memories and refuse to believe they could be misremembering.

Now, most people don’t regard this as lying and I think that’s fair. But, misremembering, especially misremembering badly in a serious context which harms another person, does strike me as equivalent to lying.

It also means that character evidence isn’t great because who knows how well the person remembers the behaviour or words they are testifying about, unless there is more than one person testifying to that act or conversation.

People aren’t good at identifying “bad” people

But just as important as the rampant lying that humans do for our case against character evidence is the fact that human beings are really bad at identifying “bad” people.

Worse, people think they are good at figuring this out.

Remember that exhibit about the purse-snatching at the Ontario Science Centre?

Well it didn’t just say something about human memory. It also said something about our inability to identify “bad people.” Because, in this exhibit, there were multiple people accused of the purse-snatching, all of whom were on camera in the film of the crime. And some of them were ugly.

And you’ll never guess who were the most popular faces for the purse-snatcher among first time viewers of the exhibit. Yes, that’s right, the ugly guys. And no, they didn’t do it.

Sure, it’s all made up, but it captures something about us: from time immemorial, human beings have believed they could determine character by physical features, especially facial features, but also things like hunched backs and, um, left-handedness. (Seriously. People believed for most of human history that left-handed people were more likely to commit crimes.)

And much like people think ugly people commit more crimes than pretty people, they also think people they don’t personally like commit more crimes, or are more likely to commit crimes, than people they like.

We can see this all around us, from how the rich will not ostracize Epstein’s circle, to the incredulous comments every time an “upstanding citizen” is accused or convicted of a crime.

Meanwhile, the poor, the ugly and the weird - and especially ethnic minorities - are railroaded and scapegoated.

This is, alas, just the way we are. But I think it’s a really good reason to not listen to character evidence when the character evidence is

• Someone testifying negatively about someone they already didn’t like before they were accused of a crime

• Someone testifying negatively about someone form a lower class

• Someone testifying negatively about someone from a different ethnic group

• Someone testifying negatively about someone who was somehow a social outcast (weird clothes, different sexual orientation in a small town, someone with untreated mental health problems, etc.).

None of these are reasons to reject character evidence on its face. Obviously character evidence can be valuable and can be reasonably accurate.

But when you combine the above with someone testifying negatively about something the accused has done which is of a far less serious magnitude than the crime they are accused, of, that’s when character evidence is problematic and probably bullshit. So, for example, when someone, say a cousin, testifies about the accused committing theft, and the accused is someone they already didn’t like, and they stand to benefit from the accused going to jail, and they claim that the theft is a pretty good reason to believe that the accused jumped from theft to murder - well, I’d say that’s a good time to throw out character evidence. I don’t know that’s it’s anything more than prejudice.

Is Character Evidence just prejudice?

Sometimes I think that’s all it is. And it’s probably too often the case in murder cases.

But despite my apparent cynicism above, I do think the average person really does try to be a good person - they try to tell the truth and they try to do the right thing, most of the time.

I think most character witnesses - not jailhouse snitches, usually - believe they are telling the truth. I think most of them think they are doing the right thing for society and their community. I think they strongly believe they are not lying, no matter how accurate or inaccurate their testimony might be.

Listening to this season of In the Dark, I do believe the cousins think they were doing the right thing. I think they sincerely believe the brother did it. I think they sincerely believe they were helping when they went to the house and looked for evidence. And regardless of how they actually found the piece of physical evidence that convicted their cousin, and whether or not they lied about when and where they found it, I do believe they think they helped. And I think they can believe these things while also inheriting the estate and not realizing they acted in an extremely selfish and immoral way.

The problem, for me, is that the average character witness for the prosecution is not going to be self-aware enough about whether or not they are testifying about the accused’s character for the right reasons, or whether or not they are accurately representing the accused. Some people will lie, like the convicted man’s ex girlfriend who got caught lying about his plot to kill his family. (Somehow she was still a character witness.) But most people will just futz with the truth to get to their (consciously or unconsciously) desired outcome. Like the cousins.

And that’s why this can’t be on the witnesses, it has to be on the system.

The Prejudice of the System Should Be Against Character Evidence

Specifically when it comes to murder, a good judicial system should be biased against character evidence unless there is either a lack of any other evidence (physical evidence, eye witness testimony*) or unless the character evidence is so overwhelming that it must be admitted. For the latter, I think of things like recordings: say instead of a recording of someone talking about the crime before they committed it there are multiple witnesses to that conversation, the key emphasis being on “multiple.” Or testimony about multiple physical assaults that aren’t in the record because the police were never called. Stuff like that - stuff that is clearly related to the type of crime.

(*Yes, I know eye witness testimony is also extremely low quality.)

Otherwise, I think the system should exclude character evidence whenever possible. Character evidence should be considered, by law, to be among the lowest quality evidence. Judges should only allow it under very strict circumstances - such as the examples above. Prosecuting attorneys should be trained to demand better evidence to refuse to prosecute cases where there is only character evidence or very limited physical evidence and character evidence. (Again, unless there is some overwhelming aspect to the character evidence. Even then, if you’re in a small town, there is always at least one person who the whole town hates, so that isn’t really feasible as policy.) Police should be trained that character evidence isn’t good enough unless it’s overwhelming. Moreover, sometimes character evidence is a red flag not about the accused but about the accuser. In this case, it doesn’t seem like the police ever investigated the cousins’ motives for both providing a piece of physical evidence the police had not found on their own and for testifying against the accused. But they had a really good motive for doing so, they stood to inherit the estate if he went to jail!

And defense attorneys need to go after this testimony more decisively. This is not one of those podcasts where they read the trial transcript so I have no idea what the barristers did or didn’t ask these character witnesses here. But some of the stuff that apparently led to this man’s prosecution include smiling and telling jokes in supposedly inappropriate moments after the murders. It strikes me that a competent barrister could destroy that kind of testimony really easily by asking simple questions like “Have you never seen, in your entire life, someone tell a joke at a funeral before?” Or, “Is it your experience that people who tell jokes at funerals often have murdered the decedent?” Or, “Do you believe it’s a small step from stealing from your parents to murdering them, your sister and your nephews?” Or similar lines of questioning. (I have no idea if they would be overruled but the point is that there are avenues to attack people who claim that “attacking strange” is a sign of guilt. It’s not and believing so is stupid.)

I can’t imagine things will improve, though, as if there’s one thing people like to do it’s share their opinions of others, especially bad opinions of others who are now on hard times. If there’s another thing people like to do it’s listen to these opinions.

I can only hope that, if I’m ever serving on a jury, and I see a case that it is made up almost entirely of character evidence, I will not vote to convict.