"He Looks Guilty": Reforming Good Character Evidence to Undercut The Presumption of Guilt

Juries often use short-cuts to determine the character of the accused, such as their job, age, race, gender, marital status, or what the person looks like. These short-cuts often substitute for character evidence in courtrooms across the United States, adding to the divide in the criminal justice system today. This problem provides a lens to examine the character evidence rules and how they are implemented. Rules governing good and bad character evidence themselves have been turned on their head. A defendant's right to put in good character has been called "deeply imbedded in our jurisprudence." Nevertheless, the rules currently exclude almost all good character evidence from criminal trials. Ostensibly, defendants are protected from bad character evidence because "a defendant must be tried for what he did not for who he is." Nevertheless, there has been tremendous growth in the introduction of uncharged bad conduct in the past decade. Character evidence must be understood in the context of the presumption of innocence. The presumption of innocence is not necessarily assured. If the accusation of criminal wrong-doing fits with stereotypes that jurors walk in with, the accusation is more likely to stick. Good criminal defense attorneys try to put on evidence that will humanize their client to the jury and reassert a presumption of innocence. Alternately, evidence of other wrong-doing often exacerbates prejudice so that jurors are even less likely to give the presumption of innocence that the law requires. To help rectify the problem of negative stereotyping, it is time to consider amending the character evidence rules.