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Welcome to the nexus of ethics, psychology, morality, technology, health care, and philosophy

Saturday, March 19, 2022

The Content of Our Character

Brown, Teneille R.
Available at SSRN: https://ssrn.com/abstract=3665288


The rules of evidence assume that jurors can ignore most character evidence, but the data are clear. Jurors simply cannot *not* make character inferences. We are so driven to use character to assess blame, that we will spontaneously infer traits based on whatever limited information is available. In fact, within just 0.1 seconds of meeting someone, we have already decided if we think they are intelligent, trustworthy, likable, or kind--based just on the person’s face. This is a completely unregulated source of evidence, and yet it predicts teaching evaluations, electoral success, and even sentencing decisions. Given the pervasive and unintentional nature of “spontaneous trait inferences” (STIs), they are not susceptible to mitigation through jury instructions. However, recognizing that witnesses will be viewed as more or less trustworthy based just on their face, the rules of evidence must permit more character evidence, rather than less. This article harnesses undisputed findings from social psychology to propose a reversal of the ban on character evidence, in favor of a strong presumption against admissibility for immoral traits only. This removes a great deal from the rule’s crosshairs and re-tethers it to its normative roots. My proposal does not rely on the gossamer thin distinction between propensity and non-propensity uses, because once jurors hear about past act evidence, they will subconsciously draw an impermissible character inference. However, in some cases this might not be unfairly prejudicial, and may even be necessary for justice. The critical contribution of this article is that while shielding jurors from character evidence has noble origins, it also has unintended, negative consequences. When jurors cannot hear about how someone acted in the past, they will instead rely on immutable facial features—connected to racist, sexist and classist stereotypes—to draw character inferences that are even more inaccurate and unfair.

Here is a section

Moral Character Impacts Ratings of Intent

Previous models of intentionality held that for an act to be considered intentional, three things had to be present. The actor must have believed that an action would result in a particular outcome, desired this outcome, and had full awareness of his behavior. Research now challenges this account, “showing that individuals attribute intentions to others even (and largely) in the absence of these components.”  Even where an actor could not have acted otherwise, and thus was coerced to kill, study participants found the actor to be more morally responsible for an act if he “identified” with it, meaning that he desired the compelled outcome. These findings do not fit with our typical model of blame, which requires freedom to act in order to assign responsibility.  However, they make sense if we adopt a character-based approach to
blame. We are quick to infer a bad character and intent when there is very little evidence of it.  

An example of this is the hindsight bias called the “praise-blame asymmetry,” where people blame actors for accidental bad outcomes that they caused but did not intend, but do not praise people for accidental good outcomes that they likewise caused but did not intend. The classic example is the CEO who considers a development project that will increase profits. The CEO is agnostic to the project’s environmental effects and gives it the go-ahead. If the project’s outcome turns out to harm the environment, people say the CEO intended the bad outcome and they blame him for it. However, if instead the project turns out to benefit the environment, the CEO receives no praise. Our folk conception of intentionality is tied to morality and aversion to negative outcomes. If a foreseen outcome is negative, people will attribute intentionality to the decision-maker, but not if the foreseen outcome is positive; the overattribution of intent only seems to cut one way. Mens rea ascriptions are “sensitive to moral valence . . . . If the outcome is negative, foreknowledge standardly suffices for people to ascribe intentionality.” This effect has been found not just in laypeople, but also in French judges. If an action is considered immoral, then our emotional reaction to it can bias mental state ascriptions.