Moral Character, Motive, and the Psychology of Blame
Moral Character, Motive, and the Psycholog y of Blame
Recommended Citation Janice Nadler and Mary-Hunter McDonnell, Moral Character, Motive, and the Psychology of Blame, 97 Cornell L. Rev. 255 (2012) Available at: http://scholarship.law.cornell.edu/clr/vol97/iss2/3
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PSYCHOLOGY OF BLAME
Janice Nadlert &
Criminallaw conceives blameworthiness as the carefully calculated end
product of discretejudgments about a transgressor'sintentionality, causal
proximity to harm, and the harm'sforeseeability. Research in
socialpsychology, on the other hand, suggests that blaming is often intuitive and
automatic, driven by a natural impulsive desire to express and defend social
values and expectations. Reconcilinglegal blame with psychologicalblame is
not always feasible because the law does not always explicitly recognize or
encourage thefactors that influencejudgments of legal blame. In this
Article, we focus on two highly related motivational processes-the desire to
blame badpeople and the desire to blamepeople whose motivefor acting was
bad. We report three originalexperiments that suggest that an actor's bad
motive and bad moral charactercan increase not only perceived blame and
responsibilitybut also increaseperceived causalinfluence and intentionality.
We show that people are motivated to think of an action as blameworthy,
causal, and intentional when they are confronted with a person who they
think has a bad character even when the character information is totally
unrelated to the action underscrutiny. We discuss implicationsfor doctrines
of mens rea definitions,felony murder, inchoate crimes, rules of evidence,
and proximate cause.
INTRODUCTION .................................................... 256
MORAL CHARACTER AND MOTIVE .......................... 260
t Northwestern University School of Law & American Bar Foundation;
. Professor Nadler is grateful to the American Bar Foundation
for financial support.
tt Northwestern University School of Law & Kellogg School of Management,
Northwestern University; . The authors are grateful to
Ron Allen, Kenworthey Bilz, Don Braman, Michael Cahill, Ed Cheng, Margareth Etienne,
Jim Heckman, Claire Hill, Bonnie Honig, Rob Kar, Herb Kritzer, Dan Kahan, Minoru
Karasawa, Joshua Knobe, Jay Koehler, Stewart Macaulay, Richard McAdams, Michael
McCann, Sally Merry, Pam Mueller, Esfand Nafisi, Bob Nelson, Jennifer Robbennolt, Arden
Rowell, Jed Rubenfeld, Robert Sampson, Larry Solan, Susan Shapiro, Avani Sood, Nancy
Staudt, and Emerson Tiller for helpful comments; to participants at workshops at Brooklyn
Law School, University of Minnesota Law School, University of Illinois College of Law, and
conference participants at the International Society for Justice Research meeting and the
Conference on Empirical Legal Studies. Thanks to Heather Benzmiller for excellent
It is a fundamental tenet of criminal law that we do not judge the
criminality of an act based on the character of the actor. Rather,
"[t]he sun of justice shines alike 'for the evil and the good' . . . .
[T]he most vicious [defendant] is presumed innocent until proven
guilty."1 The purpose of a criminal trial, then, is to determine
whether a person committed a criminal act, not whether a person is
good or bad in the abstract. The prosecutor's task is simply to prove
that the defendant's actions meet the statutory elements of a crime;
these offense elements do not require proof of character.2
Blameworthiness, in this context, is the carefully calculated end product of
discrete judgments about a transgressor's intentionality, causal proximity
to harm, and the harm's foreseeability. The logic of criminal liability
takes into account a particular harmful act, done with a particular
1 People v. White, 24 Wend. 520, 574 (N.Y. 1840) (opinion of Senator Verplanck),
quoted in IA JOHN HENRY WiGMORE, EVIDENCE IN T~miis AT COMMON LAW § 57, at 1183
(Peter Tillers ed., rev. 1983).
2 See 2A CHARLES ALAN WRIGHT & PETERJ. HENNING, FEDERAL PRACTICE & PROCEDURE
§ 409 (4th ed. 2009 & Supp. 2011).
mental state, that caused a particular harmful result. The
combination of these elements determines the blame assigned to the offender;
there is no room in this calculation for varying blame according to the
actor's moral character. 3
Research in social psychology, on the other hand, suggests that
blaming is often intuitive and automatic, driven by a natural,
impulsive desire to express and defend social values and expectations. 4 In
this way, blaming serves an integral social function. 5 By blaming a
wrongdoer, we establish, enforce, and express the social boundaries
and rules of our community. 6 To this end, people are often willing to
make sacrifices to punish cheaters even when they themselves are not
the cheated victims. 7 Blaming in ordinary social life primarily serves
as an expressive social tool to sort the "bad" members of society from
the "good" members of society and thereby, to foster solidarity and
cohesion among those who are appropriately abiding by social
expectations.8 In ordinary social life, therefore, an actor's perceived
character and reasons for acting are of primary importance to the process of
administering blame for that actor's harmful action. 9
SOCIAL PSYCHOLOGY OF MORALITY. EXPLORING THE CAUSES OF GOOD AND EVIL 91, 91-93
(Mario Mikulincer & Phillip R. Shaver eds., 2012); see also Dan M. Kahan & Donald
Biaman, The Self-Defensive Cognition of Self-Defense, 45 AM. CRIM. L. REV. 1, 2-6, 62-64 (2008)
(finding that perceivers' cultural values shape their perceptions of and blame for contested
self-defense killings). For a classic treatment of the function of blame and punishment, see
EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 41-60 (W.D. Halls trans., The Free
Press 1984) (suggesting that processes of blaming and punishing allow members of a
society to express indignation at acts that offend the collective conscience, thereby affirming
collective values and fostering social cohesion).
5 See MICHAEL MOORE, PLACING BLtAME: A GENERAL THEORY OF THE CRIMINAL LAW
92-95 (1997); Ernst Fehr & Simon Gfchter, Altruistic Punishment in Humans, 415 NATURE
137, 137 (2002); J.L. Mackie, Morality and the Retributive Emotions, 1 CRIM. JUST. ErHIcs 3,
3-5 (1982); Paul H. Robinson et al., The Origins of Shared Intuitions ofJustice, 60 VAND. L.
REV. 1633, 1639 (2007).
6 SeeJonathan Haidt, The New Synthesis in MoralPsychology, 316 SCIENCE 998, 998-1001
(2007); Neil Vidmar, Retribution and Revenge, in HANDBOOK OFJUsTIcE RESEARCH IN LAW 31,
31-32 (Joseph Sanders & V. Lee Hamilton eds., 2001).
7 See Ernst Fehr & Urs Fischbacher, Third-Party Punishment and Social Norms, 25
EVOLUTION & HUM. BEHAV. 63, 64 (2004).
8 See DuRKHEiM, supra note 4, at 63 ("[P]unishment is above all intended to have its
effect on honest people."); Tom R. Tyler & RobertJ. Boeckmann, Three Strikes and You Are
Out, but Why? The Psychology of Public Supportfor PunishingRule Breakers, 31 LAw & Soc'Y REV.
237, 255 (1997); Vidmar, supra note 6, at 49.
9 See, e.g., RICHARD B. BRANDT, ETHICAL THEORY THE PROBLEMS OF NORMATIVE AND
CRITICAL ETHICS 465-75 (1959) (suggesting that blameworthy actions are those that would
not occur absent a bad moral character); Michael D. Bayles, Character,Purpose, and Criminal
CORNElL LAW REVIEW
In this Article, we suggest that the legal and social-psychological
processes of blame cannot be completely divorced. Inevitably,
socialpsychological processes of blame, which often operate on a level
beneath conscious awareness, inform and influence formal legal
processes of blame. Specifically, we suggest here that perceptions of
an actor's moral character and motive for acting together affect our
intuitions of blame, responsibility, and ultimately criminal liability for
that actor's harmful act. People have a natural, psychological
inclination to punish others with bad characters who act with bad motives;
that inclination shapes the way that people interpret information in a
formal legal proceeding via a process that we refer to as "motivated
inculpation."10 In a series of original social-psychological
experiments, we provide evidence that when people judge a harmful action
performed by a bad person or performed with a bad motive, they are
more likely to perceive that person as more responsible, and the act as
more causal and intentional, than when they judge an identical
harmful action performed by a good person or performed with a good
motive. Thus, it is plausible that intuitive and automatic psychological
blaming motivations can permeate more formal legal mechanisms of
blame. Ultimately, this suggests that the social-psychological impulse
to punish bad people who act with bad motives can color the legal
process of blame, such that we are more likely to find that the harmful
action of a bad person satisfies the statutory elements of a crime and
in turn, is worthy of criminal condemnation and punishment.
This Article advances current research and theory in bringing to
light ways in which psychological blaming processes drive legal blame.
Our analysis informs essential normative questions regarding the
extent to which legal processes ought to take into account the
psychological factors that drive the mechanisms of blame. For example, to
what extent and under what circumstances should a court admit into
evidence a defendant's motive for acting and permit it to be
considered in liability judgments? Can the rules of evidence effectively
exclude information about moral character, and is exclusion of this
Responsibility, 1 LAw & PHIL. 5, 7 (1982) (arguing that blame and punishment are not
meted for acts at all, but for the character traits indicated by those acts).
10 A number of recent studies examine motivated cognition in law. See, e.g., Kevin M.
Carismith & Avani Mehta Sood, The Fine Line Between Interrogationand Retribution, 45 J.
EXPERIMENTAL & Soc. PSYCHOL. 191, 191-96 (2009); Dan M. Kahan, Culture, Cognition,and
Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729,
731-35 (2010); Dan M. Kahan et al., "They Saw a Protest" CognitiveIlliberalism andthe
SpeechConduct Distinction, 64 STAN. L. REV. (forthcoming 2012), available at
http://papers.ssrn.com/so3/papers.cfm?abstract-id=1755706; Dan M. Kahan et al., Whose Eyes Are
You Going to Believe? Scott v. Harris and the Perilsof Cognitive Illiberalism, 122 HARV.L. REV.
837, 841-43 (2009); Avani Mehta Sood &John M. Darley, The Plasticity of Harm: An
Experimental Demonstration of the Malleability ofJudgments in the Service of
Criminalization (July 15, 2010) (unpublished manuscript) (on file with authors).
evidence a proper goal given how jurors and judges likely use such
information? These normative questions lie at the heart of criminal
adjudication; yet, they are outside the scope of this Article. We can
deal with them only after we gain a deeper understanding of
empirical questions about psychological blaming processes. This Article
furthers our understanding of the empirical issues and provides the
groundwork for later normative analyses of the proper role of motive
and character in criminal liability.
In proceeding, we will first discuss differences between legal and
psychological processes of blame with particular focus on the role that
character information plays within each paradigm. The law governing
criminal trials generally attempts to purge character from its blaming
process in several ways. Criminal law itself, especially in its
contemporary form, breaks the blaming process into discrete, component
parts-such as act, mental state, attendant circumstances, and
resultand leaves little room for juror judgments about the defendant's
moral character. Moreover, evidence law places strict limits on the
admissibility of character evidence. By contrast, preexisting
motivational factors strongly influence psychological blaming processes and
prompt decision makers to assign importance to factors (like
perceived character) that are legally incidental or even irrelevant. In Part
I of this Article, we explore the'criminal law's treatment of moral
character and motive in legal blaming processes, which we later contrast
with psychological blaming processes. In doing so, we draw on
Durkheimian punishment theory and the psychological phenomenon
of motivated reasoning to sketch an account of how information
about a transgressor's character influences perceivers' determinations
of that transgressor's blame and responsibility. In Part II, we present a
test of our theory in a series of three original social-psychological
experiments in which we find that perceived bad moral character or
perceived bad motive can trigger perceivers' impulses to view an actor's
harmful conduct as more causal, intentional, and blameworthy.
These experimental results show that motivational forces can mold
basic judgments of blame, responsibility, causation, and intentionality
just as readily as everyday perceptions about, say, the adorableness of
our own children or the negligible health implications of that
delicious-looking piece of cake on the table. In Part III we analyze some
practical applications of our findings for several legal doctrines in
which evidence of bad moral character or motive may come into play,
such as in proximate cause, felony murder, and the evidentiary
treatment of character evidence. Finally, in Part IV we conclude with a
discussion of the limitations of the experiments reported here and
offer directions for further empirical investigation.
MORAL CHARACTER AND MOTIVE
Motive and Character in Legal and Social-Psychological
Processes of Blame
In general, our legal system eschews the role of character in
criminal liability determinations, relying instead on an act-based system of
inculpation.1 1 According to this system, the State's right to impose
blame on an actor derives solely from the actor's commission of a
prohibited act.1 2 Put simply, we blame a criminal for what she did, not
who she is.
That being said, as human beings we are nevertheless naturally
motivated to punish people we see as having a bad moral character or
a lasting criminal disposition. As John Henry Wigmore asserted,
The deep tendency of human nature to punish not because our
[defendant] is guilty this time but because he is a bad man and may
as well be condemned now that he is caught is a tendency which
cannot fail to operate with any jury, in or out of court."1 3
Similarly, the Supreme Court has warned that evidence of prior
criminal activity to display a "propensity" to commit a crime poses a "risk
that a jury will convict for crimes other than those charged-or that,
uncertain of guilt, it will convict anyway because a bad person deserves
In an article providing empirical confirmation of this tendency,
Theodore Eisenberg and Valerie P. Hans analyzed a sample of real
jury trials and found that, where the evidence is weak or ambiguous, a
jury that learns of a defendant's prior criminal record is significantly
On the other hand, character does play an accepted role in processes of
punishment. For a thoughtful discussion of the distinction between the role of character in
phases of guilt versus phases of punishment, see Benjamin B. Sendor, The Relevance of
Conduct and Characterto Guilt and Punishment, 10 NOTRE DAME J.L. ETHICS & PUB. POL'Y 99, 99
12 See id. ("Although a defendant's character sometimes can function as evidence of
whether the defendant committed the alleged act with a culpable mental state, the
defendant's character is not itself a criterion or an element of guilt."); see also G.W.F. HEGEL,
ELEMENTS OF THE PHILOSOPHY OF RIGHT 123 (Allen W. Wood ed., H.B. Nisbet trans.,
Cambridge Univ. Press 1991) (1821) (suggesting that the commission of an act that infringes
on a member of society is necessary and sufficient to justify the state's imposition of
13 See WIGMORE, supra note 1, § 57, at 1185.
Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting United States v.
Moccia, 681 F.2d 61, 63 (1st Cir. 1982)); see also Frederick Schauer, On the
SupposedJuryDependence of Evidence Law, 155 U. PA. L. REv. 165, 197 (2006) (discussing the importance
of the exclusionary rule to combat the risk that judges and jurors will weigh evidence of
past criminal activity too heavily).
more likely to convict than a jury without such knowledge. 15 Earlier
experimental research also demonstrated the influence of prior
crimes on the likelihood of guilt judgments. This experimental
research suggests that the seriousness and similarity of prior crimes plays
an important role, such that serious crimes or those similar to the
crime on trial are more likely to lead to guiltjudgments than trivial or
dissimilar crimes. 16 In fact, some experiments found no increased
likelihood of guilt judgments when the prior crime is dissimilar to the
current crime. 17 The influence of prior similar crimes on mock-juror
guilt judgments suggests that people make a simple inference about
propensity that operates within a given category. For example, people
might reason along the lines of "once a burglar, always a burglar."'1 8
But the delimitations of the categories employed in this regard
remain unsettled in the literature; the relevant category might be as
narrow as a particular offense, such as burglary, or as broad as a class of
offenses, such as violent crimes. 19 Regardless, the empirical literature
provides fairly robust proof that evidence of a defendant's prior
crimes or character flaws can potentially influence judgments about
whether the defendant committed the specific instance of the specific
crime in question.
To protect against any undue weight that jurors might place on
prior crimes, Congress, state legislatures, and courts have established
certain evidentiary safeguards to limit the admission of evidence
Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect
of a Prior CriminalRecord on the Decision to Testify and on Trial Outcomes, 94 CORNELL L. REv.
1353, 1357, 1380-85 (2009).
16 See Edith Greene & Mary Dodge, The Influence of PriorRecord Evidence
onJurorDecision Making, 19 LAW & HUM. BEHAV. 67, 69 (1995); Valerie P. Hans & Anthony N. Doob,
Section 12 ofthe CanadaEvidence Act and the Deliberationsof SimulatedJuries, 18 CRIM. L.Q. 235,
237-38 (1976); Sally Lloyd-Bostock, The Effects onJuries of HearingAbout the
Defendant'sPrevious CriminalRecord: A Simulation Study, 2000 CRIM. L. REv. 734, 753-55; Roselle L. Wissler &
Michael J. Saks, On the Inefficacy ofLimiting Instructions: When Jurors Use PriorConviction
Evidence to Decide on Guilt, 9 LAw & HUM. BEHAV. 37, 47 (1985).
17 See E. Gil Clary & David R. Shaffer, Another Look at the Impact of Juror Sentiments
Toward Defendants on JuridicDecisions, 125J. Soc. PSYCHOL. 637, 648 (1985). Edmund Howe
suggests that it is similarity and not seriousness that does the work. See Edmund S. Howe,
JudgedLikelihood of Different Second Crimes: A Function ofJudged Similarity, 21 J.APPLIED Soc.
PSYCHOL. 697, 697-98 (1991). But the experiment reporting this finding employed a
within-subjects design that posed a very large series of simple propensity questions. It is
therefore likely that the findings of this study are properly limited to what people say ought
to matter, and not how they actually makejudgments. Other studies suggest that there are
two separate effects, one for similarity and one for seriousness. See Wissler & Saks, supra
note 16, at 41-43.
18 See Hans & Doob, supra note 16, 237-38.
19 See A.P. Sealy & W.R. Cornish, L.S.E. Jury Project, Juries and the Rules of Evidence,
1973 CRIM. L. REv. 208, 217-18 (explaining that when the prosecution introduced a similar
prior crime, mock juries were more likely to convict; when the prosecution introduced a
dissimilar prior crime the likelihood of conviction did not increase and in fact in some
cases even decreased).
garding moral character and prior crimes. For example, Federal Rule
of Evidence 404(a) generally prohibits the admission of evidence to
establish that a person has a bad character.2 This rule bars the
prosecution from presenting evidence that suggests a defendant's general
immoral disposition as a strategy to demonstrate the likelihood that
the defendant committed a specific crime.2 1 Additionally, Rule
404(b) disallows evidence of a defendant's "other crimes, wrongs, or
acts" if used "to prove the character of a person in order to show
action in conformity therewith." 22
Despite the system's best efforts to prevent character-based
inferences from affecting judgments of criminal liability, some character
information often will still leak into a trial when it is inextricably
intertwined with other accepted elements of culpability, such as actus reus
and mens rea, or with various defenses such as duress.23 In fact, Rule
404(b)'s bar against evidence of other crimes does not apply when
introduced to demonstrate "motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident."24
Consider the fictional example of Smith. In Smith's trial for unlawful gun
possession, evidence that the police also found cocaine and a large
amount of cash in his car might be admissible show Smith's motive for
possessing the gun, that is, to protect himself. Thus, although other
crimes or bad acts are not admissible to prove a defendant's bad
character or propensity to commit the crime in question, 25 sometimes bad
acts or crimes may be admissible to prove that a defendant had a
special reason to commit the crime in question. In this sense, motive is
sometimes relevant in proving criminal liability for purposes other
than connecting the defendant's bad character to the actions for
which he is on trial.
Motive in this sense comes in many guises because motive might
influence decisions about blame for a variety of reasons. Motive is
most explicitly recognized as relevant in hate crimes, in which the
defendant harms a victim because of a protected characteristic of that
20 FED. R. EVID. 404(a) (allowing such evidence only when it is used in specific
rebuttal to evidence of good character submitted by the defense).
21 See id.
22 FED. R. EVID. 404(b). But see FED. R. EvID. 413 (permitting admission of propensity
evidence in sexual assault cases).
23 However, Oliver Wendell Holmes suggests that the criminal law can more capably
enforce standards of behavior to the extent that we separate liability from inferences of
character derived from motive. See O.W. HOLMES, JR., THE COMMON LAw 50 (1881)
("[W]hen we are dealing with that part of the law which aims more directly than any other
at establishing standards of conduct, we should expect there more than elsewhere to find
that the tests of liability are external, and independent of the degree of evil in the
particular person's motives or intentions.").
24 FED. R. EVID. 404(b).
25 But see FED. R. EVID. 413 (permitting admission of propensity evidence in sexual
victim, such as disability, gender, or race. 26 Hate crime statutes are
unusual in the sense that they make motive an element of the offense;
that is, motive must be proven in order for liability to attach. 27 In
other cases, motive might be admitted into evidence but is not
required as an element of the offense. In the example of Smith above,
Smith's motive for possessing the gun tends to prove that he did in
fact possess the gun. The fact that Smith had a good reason for
carrying the gun (to protect against theft of his cash and drugs) makes less
plausible his claim that, for example, the gun was not his or that he
was not aware that it was in the car. Another example of permissible
(but again, not statutorily required) use of motive is to distinguish
among possible mental states. For example, in a murder trial,
evidence that Jones is having an affair with his business partner's wife
might be admissible to show that Jones killed his business partner
intentionally rather than recklessly. Motive might also serve as the basis
for avoiding criminal liability. Examples of situations in which motive
might lead to a defense to liability include killing in order to avoid
being killed (i.e., a self-defense justification) or driving through a red
light to rush a dying person to a hospital (i.e., a necessity
In this way, the law sometimes permits consideration of a
defendant's motive even though it simultaneously forbids considerations of
the defendant's moral character to influence judgments of blame.
But, as our examples illustrate, motive and character are not always
readily distinguishable. The information about Jones's affair may be
admissible for its relevance to his motive and mens rea but this
information also readily lends itself to unflattering inferences aboutJones's
character as the kind of person who would have an affair with his
business partner's wife. As a result, the line between specific motive and
general moral character is not always clear.29
26 See, e.g., CAL. PENAL CODE § 422.55(a) (West 2009) ("'Hate crime' means a criminal
act committed, in whole or in part, because of one or more of the following actual or
perceived characteristics of the victim: (
) Disability. (
) Gender. (
) Nationality. (
or ethnicity. (5) Religion. (6) Sexual orientation. (7) Association with a person or group
with one or more of these actual or perceived characteristics.").
27 See, e.g., id.
28 In addition to the issue of the role of motive in determining the defendant's guilt
or innocence, there is a separate question about the role of motive in sentencing. See 1
WAYNE LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAw § 3.6(b), at 324 (lst ed.
1986); Carissa Byrne Hessick, Motive's Role in CriminalPunishment, 80 S. CAL. L. REV. 89, 90
& n.1 (2006) (noting that the defendant's motive is traditionally an important factor in
criminal sentencing) (citing Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993)).
29 Scholars debate the role of motive in liability and blame. See, e.g., Guyora Binder,
The Rhetoric of Motive and Intent, 6 BUFF. CRIM. L. REV. 1, 5-7 (2002) (arguing that the
maxim that motive is irrelevant to criminal liability is false); Elaine M. Chiu, The Challenge of
Motive in the Criminal Law, 8 Buw. CRIM. L. REV. 653, 673 (2005) (positing that motive
ought to be part of criminal law to track ordinary perceptions of blame); Martin R.
The difficulty in distinguishing motive and character also
sometimes arises when a defendant unintentionally caused the harm at
issue. The definition of recklessness in the Model Penal Code (MPC),
for example, takes into account the "nature and purpose" of the
defendant's conduct for the purpose of determining whether the
defendant's conduct constituted a "gross deviation from the standard of
conduct that a law-abiding person would observe in the actor's
situation. '30 Recklessness in the MPC also involves the disregard of an
"unjustifiable risk,"' 31 which is determined by "considering the nature and
purpose of [the actor's] conduct and the circumstances known to
him."32 The same phrase is also included in the MPC definition of
negligence. 33 The difficulty of distinguishing motive and character is
clear from these definitions since the nature and purpose of the
actor's conduct are, in many situations, inextricably intertwined with the
actor's motive for acting. The defendant who shoots a gun into a
crowd for fun is reckless because the nature and purpose of his
conduct is unjustifiable; accordingly, the risk he creates is unjustifiable as
well. The defendant who shoots to try to stop a purse snatcher, on the
other hand, has a stronger argument that the risk he took was
justified. In this way, the nature and purpose of the actor's conduct can
be placeholders for motive, and motive can be a strong signal of moral
Motive, in the sense of the nature and purpose of the conduct
that leads to unintended harm, does influence blame judgments as an
empirical matter. Consider Mark D. Alicke's series of experiments,
which suggest that we are more likely to assign blame when a
transgressor had a bad motive for doing an act that resulted in harm than
when he had a good motive. 34 In one study, participants read about a
man who was speeding home in the rain and negligently collided with
another car, causing injury.35 Some participants were told that the
man was speeding home because he wanted to hide a vial of cocaine
from his parents; others were told that he was speeding home to hide
an anniversary present for his parents.36 Participants' judgments of
blame varied systematically with the driver's reason for speeding:
people who learned that he was speeding home to hide the cocaine
blamed him more than those who learned he was speeding home to
hide the present. 37 Thus, the driver's motivation for speeding
influenced lay judgments of blame.3 8 Alicke argues that we are inclined to
blame transgressors with bad motives for acting because it leads to an
inference that they had more control over the situation that led to the
harm-that is, those with "culpable control. '39 More broadly, Alicke's
experimentally proffered reasons for acting come with obvious
concomitant inferences as to the actor's underlying character-whereas
we would generally make favorable inferences about the character of
the kind of person who is motivated to plan the perfect surprise to
honor his parents' anniversary, we would be prone to make quite
opposite inferences about the character of a paranoid cocaine
It is easy to see that admissible information about a defendant's
motive could, in some instances, implicitly encourage inferences
about the defendant's moral character. These inferences are
consonant with a theoretical literature on punishment and character that
argues that inferences about moral character ought to be an integral
component of legal blaming processes. 4 1 On this view, responsibility
for an action derives from the actor's responsibility for his or her own
character. 42 Theorists within this tradition contend that a defendant
should only be culpable for a harmful action insofar as his action
supports an inference of a flawed character or a blameworthy disposition,
that is, if the action "reveals what sort of person he is in some
respect. '43 According to this perspective, acts are only blameworthy to
the extent that they betray an underlying character flaw in the actor.44
In this framework, therefore, because claims of duress, necessity, or
accident each derive from situations in which someone of good
character could nevertheless find themselves engaged in a harmful or
socially undesirable action,45 excuses and justifications operate to thwart
the inference from action to character and block the attachment of
Similarly, a legitimate motive can mitigate or even exculpate a
harmful act. As discussed above, the purpose for which a person
imposes a risk of harm to others can determine whether or not that
person is considered to have acted with the mental state of recklessness or
not.4 7 Just as character theorists tie culpability to an inference of a
flawed character, motive theorists tie culpability to the values
expressed by offenders' motives. On this account, whether we should
mitigate murder to voluntary manslaughter depends on our
assessment of the worth of the offender's motive for and emotions
accompanying the killing. 48 According to the moral-evaluation conception
of emotion, if an offender's motives and emotions express values we
deem atrocious-for example, a husband's outrage triggered by his
wife's attempt to leave him, or a man's "panic" triggered by an
unwanted homosexual advance-we will not mitigate, regardless of the
extent to which the defendant's capacity to control his actions was
See, e.g.B,RANDT, supra note 9, at 475 ("[A]n act is reprehensible (morally
admirable) only if it would not have occurred had not its agent had a character in some respect
less (in the case of "admirable," more) desirable than average."); NICOLA LACEY, STATE
PUNISHMENT: POLITICAL PRINCIPLES AND COMMUNITY VALUES 68 (1988) ("[It is unfair to
hold people responsible for actions which are out of character, but only fair to hold them
so for actions in which their settled dispositions are centrally expressed."); Bayles, supra
note 9, at 7-15 (1982) (arguing that actions may or may not demonstrate underlying
character traits, but that blame is only appropriate when a socially undesirable trait can be
inferred); George Vuoso, Background, Responsibility, and Excuse, 96 YALE L.J. 1661, 1673
(1987) ("Whether an action merits praise or blame ...will depend on how it reflects on
the agent, or on something enduring in the agent (which, following tradition, we are
calling his 'character.')").
45 Benjamin Sendor points out that there is some corroboration of this conception of
evidence in the commentaries to the MPC. See Sendor, supra note 11, at 100 n.7. For
example, the MPC suggests that "one who kills in response to certain provoking events
should be regarded as demonstrating a significantly different character deficiency than
one who kills in their absence." MODEL PENAL CODE § 210.3 cmt. 5(a) (1985); see also
Claire 0. Finkelstein, Duress: A PhilosophicalAccount of the Defense in Law, 37 ARiz. L. REV.
251, 252-53, 271 (1995) ("[E]xcused conduct should include cases in which the agent is
responsible for what she does in the non-moral sense and leave to one side cases in which
the agent is responsible in the moral sense.").
46 See ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 383 (1981) ("Excuses show an
act is not to be attributed to a defect of character .
See supra text accompanying notes 30-33.
See SAMUEL H. PILLSBURY, JUDGING EVIL: RETHINKING THE LAw OF MURDER AND
MANimpaired by his emotion. 49 On this account, an evaluation of the
extent to which the actor's motives and emotions were appropriate for
someone in his or her situation determines whether or not liability is
mitigated or even justified or excused.5 0
Several contemporary theorists oppose the idea that blame
derives from character, arguing that blame and punishment ought to be
divorced from inferences about character. 5 1 Following Alicke's
culpable-control theory, this Article posits that, as a descriptive matter,
character information that is wholly unrelated to the harmful action at
issue can color the way in which fact finders interpret that action. We
hypothesize that people are more inclined to blame (and inclined to
blame more harshly) not only when the actor's reasons for acting are
bad, but more generally, when they have any reason to believe that the
actor is a bad person. We hypothesize that, as an empirical matter, a
bad motive for acting is not necessary for perceivers to make
character-based inferences about an actor's blame and responsibility.
Rather, any unfavorable character inferences will suffice to motivate
the inculpation of a transgressor. 52
Earlier we raised a core concern expressed by many judges and
legal scholars over the years: namely, that knowledge of a previous
conviction biases the case against the defendant. 53 The intuitions of
Wigmore and of Supreme Court Justices regarding character and
blame are examples of a broader phenomenon that social
psychologists call "motivated reasoning." 54 The general principle is that
sometimes we have a preferred conclusion and are so motivated to assume
the veracity of that conclusion that we construe evidence presented to
us in a way that allows us to confirm our initial preference. 55 For
example, in a study on perceptions of risk, women who read an article
claiming that caffeine posed a risk to women's health were less
convinced by the evidence if they themselves were heavy caffeine users
than if they were caffeine abstainers. 56 The women who were heavy
caffeine users had a stake in the results. They were motivated to
discount the evidence and so initially preferred a conclusion that allowed
them to go on enjoying their coffee breaks. 57 Women who were light
caffeine users, however, had less reason to discount the evidence and
so generally did not.58
Having a personal stake in the results is just one source of
motivation; there are many ways in which serving our own interests can drive
the conclusions we endorse. 59 For example, we are also motivated to
construe information in ways that confirm previously held biases or
preconceived notions. Judges may misremember the facts of the case
before them in ways that support subconsciously endorsed racial
stereotypes. 60 Jurors sometimes engage in motivated evaluation of
evidence by disregarding and failing to discuss evidence that supports
the conclusion opposite to the one they already favor. 61
A prime example of motivated reasoning in law lies in
policy-biased judging. Judges profess to decide cases neutrally; some even
Cf Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84
NoTRE DAME L. Rv. 1195 (2009) (determining that sometimes judges hold implicit racial
biases that affect decision making).
61 See Kurt A. Carlson &J. Edward Russo, Biased Interpretationof Evidence by Mock Jurors,
7J. EXPERIMENTAL PSYCHOL.: APPLIED 91, 91-92 (2001). Similarly, the good or bad motive
of the defendant can influence the extent to which mock jurors credit various pieces of
evidence in the trial. See Keith J. Holyoak & Dan Simon, BidirectionalReasoning in Decision
Making y ConstraintSatisfaction, 128J. EXPERIMENTAL PSYCHOL.: GEN. 3, 11-12 (1999)
(using a vignette involving a libel action by a company against an investor, the researchers
demonstrated that, compared to when the investor was motivated simply by honest
concern, when his speech was motivated by malicious greed, perceivers were more likely to
positively assess arguments supporting liability, and to negatively assess arguments
fess that their role is like an umpire calling balls and strikes. 62 Very
few judges would acknowledge that they decide cases according to
their own policy preferences. Nevertheless, a wealth of evidence from
real cases demonstrates that judges sometimes decide cases according
to their personal political ideology63-even though they are generally
unaware that they are doing so. 64 Moreover, even judges who
understand that they must disregard information that is excluded from
evidence, and genuinely attempt to ignore it, still remain on the whole
unable to refrain from being influenced by the barred information. 65
Of course, these ideas apply outside the judiciary as well. In one
study, people predisposed to favor a policy permitting gay scout
leaders judged other cases to be more similar if they involved a finding of
illegal discrimination. 6 6 In another study, law students deciding the
constitutionality of a proposed change in a school district's tax rate
were more likely to find the proposed tax rate unconstitutional when
it was inconsistent with their own tax policy preferences. 6 7 This
finding emerged even though the participants were provided with a
monetary incentive to arrive at the legally correct decision. 68
When we make a decision, we often have several goals, even if we
are not consciously aware of them. We generally want to reach the
See ConfirmationHearingon the Nomination ofJohn G. Roberts,Jr. to be ChiefJustice of the
United States: HearingBefore the S. Comm. on the Judiciary,109th Cong. 56 (2005) (statement
of John G. Roberts, Jr., Nominee to be Chief Justice of the United States).
63 See EILEEN BRAMAN, LAw, POLITICS, & PERCEPTION: How POLICY PREFERENCES
INFLUENCE LEGAL REASONING 4-5 (2009); GLENDON SCHUBERT, THE JUDICIAL MIND: THE
ATTITUDES AND IDEOLOGIES OF SUPREME COURT JUSTICES 1946-1963, at 102 (1965); JEFFREY A.
SEGAL & HAROLDJ. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 69 (1993)
(asserting that judges' prior ideological preferences strongly influence case outcomes);
Eileen Braman, Reasoning on the Threshold: Testing the Separability of Preferences in Legal
Decision Making, 68J. POL. 308, 318-19 (2006) (concluding that decisions about standing in a
free speech case about abortion are influenced both by free speech attitudes and abortion
attitudes); Tracey E. George & Lee Epstein, On the Nature of Supreme CourtDecision Making,
86 AM. POL. Sci. REv. 323, 325 (1992); Richard E. Redding & N. Dickon Reppucci, Effects of
Lawryers' Socio-PoliticalAttitudes on TheirJudgmentsof Social Science in Legal Decision Making,23
LAW & HUM. BEHAV. 31, 43-48 (1999) (finding that judges' personal support for the death
penalty influences decisions about whether particular social science evidence is admissible
under Daubert v. MerrellDow Pharmaceuticals,Inc., 509 U.S. 579 (1993)).
64 See Richard E. Nisbett & Timothy DeCamp Wilson, The Halo Effect: Evidencefor
UnconsciousAlteration ofJudgments, 35 J. PERSONALITY & SOC. PSYCHOL. 250, 254-56 (1977).
65 See AndrewJ. Wistrich et al., CanJudgesIgnore InadmissibleInformation?The Difficulty
of Deliberately Disregarding,153 U. PA. L. REv. 1251, 1258-59 (2005). On the other hand,
judges' probable cause decisions appear to be remarkably uninfluenced by the hindsight
bias. SeeJeffreyJ. Rachlinski et al., ProbableCause, Probability, and Hindsight 1-5 (Vand. Pub.
L. Research Paper No. 11-25, 2011), availableat http://ssrn.com/abstract=1877125.
66 See Braman & Nelson, supra note 54, at 949.
67 See Joshua R. Furgeson et al., Do a Law's Policy Implications Affect Beliefs About Its
Constitutionality?An Experimental Test, 32 LAw & HUM. BEHAV. 219, 221-26 (2008) (noting
that a law professor and a federal judge independently arrived at what the study
determined to be the correct ruling).
68 See id. at 221.
conclusion that is best supported by the available evidence. At the
same time, however, other goals bias how we interpret and process
this evidence before we reach the conclusion. Sometimes we have
initial intuitions or hypotheses driven by our preexisting preferences. 69
We then tend to reject some evidence and accept other evidence in a
biased fashion consistent with our preferences. 70 That is, we evaluate
evidence according to what we already believe, 7 1 and we selectively
remember some things but not others.7 2 We are also influenced by
factors that we ourselves regard as unjustifiable, though we may not be
aware of such influence. 73 This is especially true when the legitimate
evidence is "elastic"-that is, when there is more wiggle room to come
out either way in the conclusion.7 4 And, when we finally allow
ourselves to reach the conclusion we preferred from the beginning, we
convince ourselves that we chose it because of the evidence and not
because of any other goals we have.7 5 In sum, as Jon Hanson and
David Yosifon instruct, "The first lesson of motivated reasoning,
whatever its manifestation, is that we humans tend to hold beliefs and
reach judgments and conclusions that we desire, and we vastly
underappreciate that tendency-particularly in ourselves. ' 76
Moreover, we are especially prone to engage in motivated
reasoning when we hold strong opinions on a complex issue. 77 Under these
circumstances, we examine relevant evidence in a biased manner,
accepting favorable evidence at face value while critically evaluating and
discounting unfavorable evidence. 78 Sometimes we hold strong
opinions about judgments involving justice-for example, we read about a
heinous crime in the newspaper and feel strongly that the criminal
ought to be harshly punished. In our own day-to-day lives, our beliefs
about justice and our motivations to seek just outcomes can influence
what we remember. 79 We may even adjust memories of past events to
maintain a belief that people get what they deserve. 0 In one study,
for example, people asked to recall the value of a lottery prize
remembered a smaller amount awarded when the winner was a bad
person than when the winner was a good person.8 1 Indeed, biased
recall can also extend to memories about our own prior
experiences.8 2 For example, people who received a lucky break (such as a
prize awarded by random numbers) were able to later recall more
good deeds from their own past than those who had not been lucky.8 3
Analogously, when we are prompted to think of ourselves as a bad
person, we tend to think that we had it coming if fate then deals us a
bad hand. For example, people who were asked to recall bad deeds
from their past were more accepting of their fate later when they were
forced to spend twenty-five minutes on a mind-numbing task,
compared to people who recalled bad deeds of other people.8 4 These
studies suggest that we naturally inflate or devalue our conception of
our own selves to see our fate as just and fair.
So how does the phenomenon of motivated reasoning relate to
judgments of criminal liability? We contend in this Article that people
harbor a generalized social preference to inculpate people with bad
characters.8 5 In understanding this initial preference, it is useful to
consider ltmile Durkheim's account of the social function of crime
and punishment. According to Durkheim, attaching blame for a
crime performs a necessary expressive social function because it allows
members of society to affirm and protect collective values.8 6 In
punishing, says Durkheim, "we are avenging . . . the outrage to
morality."'8 7 And by blaming and punishing, we are effectively
differentiating ourselves from members of the society who are not
appropriately conforming to societal expectations, thus symbolically
separating the "bad" members of society from the "good" members of
society.88 As a result, the inculpation of the wicked serves
simultaneously as an expression of the solidarity of honest citizens and a
reaffirmation of the values and expectations of the collectivity.
Durkheim's theory of punishment as a social tool ultimately
suggests that we are naturally driven to inculpate and punish individuals
we believe do not properly embrace and conform to our collective
moral code.8 9 This further suggests that when we are confronted with
the complex task of assigning blame for an allegedly criminal action
within a formal legal proceeding, we will be motivated to construe the
information before us in a way that best allows us to reach our desired
conclusion and punish a bad person. This then leads to the
hypothesis at the heart of the phenomenon that we call motivated inculpation:
if we have any reason to infer that a defendant has a bad moral
character, we will be more likely to construe that defendant's action as
criminally culpable. Moreover, although formal legal processes try to
suppress character-based judgments by focusing our blaming
attention on discrete elements of the crime at issue, the research on
motivated reasoning suggests that our initial preference to blame bad
actors would likely color the way in which we interpret those elements
of the crime. Thus, we hypothesize that when a fact finder judges a
harmful action performed by a "bad" defendant or performed with a
bad motive, the defendant is perceived as more responsible, and the
act as more causal and intentional, than when a fact finder judges an
identical harmful action conducted by a "good" defendant or with a
rate from the act itself, including reasons for acting (Experiments 1 and 2) or even
information about character that is independent of the act (Experiment 3).
86 See DURKHEIM, supra note 4, at 34, 61-63.
87 Id. at 47.
88 See id. at 31-67.
89 See id.
EXPERIMENTS: MORAL CHARACTER AND BLAME
In the experiments we conducted for this Article, we tested the
idea that people's judgments about the underlying elements of
criminal liability can be colored by initial inferences about the
transgressor's moral character as derived from information about the
defendant's motive for acting or from character information that is
wholly unrelated to the harmful act at issue. Thus, we explore the
notion that, just as judges may decide some cases according to their
own policy preferences, ordinary people can be motivated to blame a
transgressor on the basis of perceived moral character.
In the experiments presented here, we focus on situations in
which the causal contribution of a transgressor's act is tenuous and in
which mens rea is weak or absent. By minimizing intentionality and
causality, we are better able to observe the role of perceived moral
character in blame attributions. We hypothesize that the perceived
moral character of a transgressor will influence judgments not only of
blame and responsibility but also of mens rea and causality. That is,
when observers perceive someone as a bad person, they will not only
be more likely to blame that person for any act that results in harm,
but they will also be more likely to judge the act as more causal and
the mental state as more culpable. Below, we summarize the results of
three experiments we conducted to test the role of information
regarding moral character in blame attributions for criminal offenses.
Then we briefly discuss some of the implications of our findings for
the criminal-law doctrines of felony murder, inchoate offense,
causation, and the evidentiary admissibility of character evidence.
Experiment 1: Frank Brady and the Firefighters
We conducted this preliminary experiment to test the hypothesis
that for a bad outcome, bad moral character influences perceptions of
blame, responsibility, causation, and the like, holding constant mens
rea and actus reus. We recruited a group of adults to answer an
online questionnaire in. which we presented a brief vignette loosely
based on People v. Brady.90 In that case, the defendant was found
criminally liable for the death of two firefighters after a trailer, which he
used as a methamphetamine lab, exploded. In the vignette, we varied
the contents of the trailer (methamphetamines or highly flammable
fertilizer) in order to examine the effect of the defendant's perceived
character on participants' subsequent judgments of blame and
In Experiment 2, we replicated the results of the first experiment,
while providing more reliable controls for the dangerousness of the
act and more directly measuring perceived moral character. As in
Experiment 1, we again found that participants perceive a transgressor
with a bad moral character as more blameworthy. Additionally, we
found that a transgressor with a good moral character (as opposed to
a neutral moral character) is less blameworthy, so that when
compared to the neutral midpoint, the moral character effect extends in
both negative and positive directions. We also again demonstrated
that bad moral character gives rise to attributions of controllability, as
shown by the effect on perceived causation. It is noteworthy that bad
moral character had no observed effect on intent; at the same time,
good moral character led participants to perceive the transgressor as
having acted less intentionally compared to the control condition.
In demonstrating the role of moral character in the first two
experiments, however, we did not separate moral character from the
nature and purpose of the conduct that led to harm. That is to say, in
the bad moral character Meth condition of Experiment 1, the
participants' inference about Brady's character arose from his motive or
purpose for storing the risky, flammable materials; the same was true for
the good moral character Orchid condition. Notably, the law's
tolerance for risk taking like Brady's-or Norton's in Experiment
2sometimes takes into account motive- or purpose-based welfare
considerations. This is particularly evident in the MPC's definition of
recklessness and of negligence, both of which account for the nature
and purpose of the risky conduct.1 14 Specifically, when an individual
disregards a substantial risk and the nature and purpose of that
disregard is not legitimate, that individual may be criminally liable.' 1 5 On
the other hand, when an individual disregards a substantial risk but is
motivated in that disregard by a laudatory purpose, the law might
recognize both the nature of the risk and its disregard as legitimate and
thus, as insufficient to form the basis of criminal liability.1 16 In
Experiment 1, growing orchids arguably increases social welfare;
manufacturing methamphetamine does not. In Experiment 2, the same can
be said of caring for a sick daughter and cheating at football,
respectively. To begin to try to isolate the influence of social welfare
considerations, we attempted in the next experiment to separate moral
character from the nature and purpose of the conduct that led to the
C. Experiment 3: Sara Davidson and the Dogs
The previous experiments varied perceived moral character by
manipulating the actor's purpose for creating the hazardous
condition. In Experiment 3, we sought to make the source of moral
character more remote from the hazardous condition that the actor created.
Additionally, we tested a second independent variable along with
moral character by varying the transgressor's awareness of the
likelihood of harm. We hypothesized participants would perceive
offenders who were aware of and disregarded a risk of harm as more
responsible and blameworthy than offenders who were not aware of
risk-this prediction follows directly from criminal-law theory.1 17 We
also predicted that bad moral character can serve as a kind of proxy
for awareness of risk, so that even when there is reason to believe a
transgressor was unaware of a risk, participants would still blame her
just as if she were aware of the risk if they perceive her to be a
generally bad person.
We recruited 203 participants through Amazon's Mechanical
Turk web service. We paid participants one dollar for completing the
survey, which took about five minutes to complete, and assured them
that their responses would remain anonymous and that we would not
collect identifying information. We excluded a number of
respondents who failed to correctly respond to an instructional manipulation
check, 18 leaving a final sample size of 182 participants. Demographic
characteristics were similar to the sample in Experiment 1.
Design and Materials
We randomly divided participants into four groups. We
independently varied two factors: first, moral character (Bad; Good) and
second, mental state (Aware; Unaware). Each participant read one
version of the vignette reproduced below:
[Good Character:] Sara Davidson is a 39 year old woman who lives
in a house with her two dogs. Sara has two young nieces whom she
adores and sees often. She spoils them with birthday presents and
special outings. Sara spends much of her free time volunteering for
various local charities. She tries to maintain a healthy lifestyle by
eating well and exercising. She has many close friends and an active
[Bad Character:] Sara Davidson is a 39 year old woman who lives in
a house with her two dogs. Sara has two young nieces but she rarely
sees them, and does not really like to spend time with them. She
spends much of her free time watching trash-tv talk shows while
smoking and eating junk food, even though she is aware that it's not
good for her blood sugar problem. She doesn't socialize much and
prefers to keep to herself.
[Aware/Unaware:] Sara's dogs are not well behaved [and she is]/
[but she is not really] aware of this. They are in a fenced yard, but
they sometimes escape and roam the neighborhood. On one
occasion the dogs escaped and cornered two children, barking and
growling. The children were unable to escape until a neighbor ran
outside with a baseball bat and chased the dogs away. Even when
fenced in the yard, the dogs growl and act aggressively toward
people walking on the sidewalk.
One morning while Sara was asleep, her dogs escaped and
terrorized a neighbor who had just opened his garage door to leave for
work. They circled the man's truck and the man jumped in the
118 See Daniel M. Oppenheimer et al.,
InstructionalManipulationChecks:DetectingSatisficing to Increase StatisticalPower, 45 J. EXPELIMENTAL Soc. PSYCHOL. 867, 867-68 (2009). In
our experiment, we asked respondents, "According to the story, to what extent did Sara
Davidson realize that her dogs were not well behaved?" We then asked them to choose one
of two options: "Sara was NOT really aware of this" or "Sara was aware of this."
truck to escape. His wife heard the yelling and chased them off by
startling them with the noise of the automatic garage door.
A few minutes later, two brothers, Chris and Travis, aged 8 and
11, were waiting at a school bus stop when they saw the dogs coming
at them. They panicked and climbed up a tree; the dogs circled the
tree, barking wildly. The dogs eventually headed down a ravine,
and Chris climbed down to check and see where they were. The
dogs circled back toward him and chased him. Just as the school
bus approached, the dogs caught Chris and began mauling him,
within view of the bus driver and the children. The driver called
911 but it was too late-Chris died from his injuries within minutes.
After reading the vignette, we asked participants to provide their
own opinion about Davidson and her role in the death of the child.
Specifically, we asked the following questions: To what extent is Sara
Davidson responsible for the death of the boy? How negatively should
Sara Davidson be judged for the death of the boy? How much blame
goes to Sara Davidson for the death of the boy? To what extent did
Sara Davidson cause the death of the boy? How intentional was Sara
Davidson toward the death of the boy? From the perspective of
someone in Sara Davidson's position, how foreseeable was the death of the
boy? We randomized the presentation of these questions and
measured them on a scale ranging from 1 (not at all) to 7 (very much).
To check whether we successfully manipulated perceived moral
character, we asked at the end of the questionnaire to what extent
Davidson has a good moral character (1 = not at all; 7 = very much), is
trustworthy (1 = not at all; 7= very much), and is a bad or good person
(1 = bad person; 4 = not sure; 7 = good person). We varied the order
of these questions randomly.
Responses to the three questions just described, which we used to
check whether we successfully manipulated Davidson's perceived
moral character, were all highly correlated, so we combined these
three items into a single measure of moral character (1 = not at all;
7 = very much). 119 As expected, participants' perceptions of
Davidson's moral character depended on whether participants read the
Good Character condition (in which Davidson was sociable, generous,
and healthy) or the Bad Character condition (in which Davidson was
unsociable and unhealthy). 120 This provides evidence that we
successfully manipulated perceived moral character.1 21
119 Cronbach's alpha = .92.
) = 152.01, p< .001, r/P2 = .458; Good Character (M= 4.40); Bad Character
(M = 2.61).
121 Note that we manipulated moral character, in part, by manipulating the food and
exercise choices of the target person (Sara Davidson). There is some empirical evidence
As mentioned previously, we manipulated both moral character
and awareness of the risk of harm in this experiment. We first
examined the effect of moral character and of awareness on
participants' judgments of the extent to which Davidson is responsible for
the boy's death, is worthy of negative judgment for the boy's death,
and is blameworthy for the boy's death. Participants' responses were
highly correlated, so we combined them into a single measure of
overall responsibility.1 22 Figure 7 illustrates the means. Specifically,
participants perceived Davidson as having more overall responsibility for
the boy's death if her character was bad than if it was good, 123 and also
possibly if she was aware of the risk of harm than if she was
unaware. 1 24 As is also apparent from Figure 7, participants treated
Davidson in the Unaware condition as if she was aware of the risk when they
also learned that her character is bad, but assigned her noticeably less
overall responsibility if they also learned that her character is good.
Additionally, participants' judgments of causation varied
according to Davidson's awareness of risk 125 and possibly also according to
her moral character, 126 as illustrated in Figure 8. Specifically,
awareness of risk played a clear role in participants' judgments of causation;
in addition, participants perceived Davidson in the Unaware
condition to have a lessened causal role if her moral character was good.
We also asked participants about the extent to which the boy's
death was intentional and the extent to which it was foreseeable.
Participants perceived Davidson's role in the boy's death as more
intentional if her character was bad 127 and if she was aware of the risk. 128
that eating specific types of foods (i.e., healthy as compared to unhealthy) gives rise to
moral judgments about the eater. See, e.g., Richard I. Stein & Carol J. Nemeroff, Moral
Overtonesof Food:Judg'mentsof Others Based on What They Eat, 21 PERSONALITY & SOC. PSYCHOL.
BULL. 480, 480-81, 489 (1995). Our manipulation check results-that Sara was seen as less
moral based partly on food choices and exercise-is consistent with this evidence. See id.;
see also Adam Benforado et al., Broken Scales: Obesity andJustice in America, 53 EMORY L.J.
1645, 1777 & n.467 (2004) (quoting Congressman F. James Sensenbrenner on the
proposed Personal Responsibility in Food Consumption Act, H.R. 554, 109th Cong. (2005), as
saying, "Don't run off and file a lawsuit if you are fat .... Look in the mirror because
you're the one to blame." (omission in original) (citing Carl Hulse, Vote in House Offers a
Shield in Obesity Suits, N.Y. TIMES, Mar. 11, 2004, at Al)).
122 Cronbach's alpha = .92.
123 F(l, 181) = 10.77; p < .01; rT2p = .040.
124 This difference was only marginally statistically significant. F(l, 181) = 4.32; p = .08;
Op = .016. The interaction between moral character and awareness of risk was not
statistically significant. F(l, 181) < 1.
) = 6.83; p < .01; qp = .036.
126 This difference was only marginally statistically significant. Fi, 181) = 2.94; p =.08;
t/p = .016. The interaction between moral character and awareness of risk was not
statistically significant. l, 181) < 1.
127 Rl, 181) = 19.74; p < .001; r7p2 = .091.
128 RNI, 181) = 16.75; p < .001; qp 2 = .077.
An interaction, 2 9 illustrated in Figure 9, qualified these effects.
Participants perceived Davidson with both bad character and awareness
of risk as acting with the highest degree of intentionality; participants
inferred less intentionality, however, where either awareness or good
character was lacking. Finally, participants' perceived foreseeability of
the boy's death varied, not surprisingly, by whether Davidson was
aware of the risk.' 30 We observed no effect, however, of moral
character on perceptions of foreseeability' 3 ' and no interaction between
moral character and foreseeability.13 2
In this third experiment, we attempted to more cleanly separate
motive from character and to hold constant the social-welfare
consequences of the risky conduct. In Experiment 1, the chemicals for
manufacturing methamphetamine signaled Frank Brady's bad moral
129 F1, 181) = 3.99; p < .05; r = .018.
) = 34.70; p < .001; rp = .162; Aware of Risk (M = 4.77); Unaware of Risk
(M = 3.32).
) = 0.07; p = .78.
) = 2.31; p = .36.
character, but the chemicals also were his reason for creating the
hazardous situation that started the fire and led to the pilots' deaths. In
Experiment 2, Sam Norton's motive for storing the flammable oxygen
signaled his moral character (bad, neutral, or good), but it was also
his reason that created the hazardous situation that led to the
explosion and the death. In Experiment 3, Sara Davidson's traits of
generosity, sociability, and even physical fitness, rather than her possible
motive or purpose for owning dogs, signaled her moral character. In
other words, we separated the moral character signal from the
hazardous situation Davidson created. Thus, unlike Brady's and Norton's
motives, Davidson's motive for creating the hazardous situation was
independent of the source from which participants could infer her
Under these facts, the criminal law would permit an inference of
liability based on the hazardous situation Davidson created but not
based on her personality or lifestyle.13 3 Yet, participants viewed the
boy's death differently depending on whether Davidson was either the
133 See supra notes 30-33 and accompanying text; cf Bayles, supranote 9, at 7
(explaining that, beyond the conception of mens rea, if an act does not indicate an undesirable
character trait, then blame is inappropriate).
type of person who ignores her nieces and sits alone watching trashy
TV and eating junk food, or the type of person who spoils her nieces,
volunteers, exercises, and watches her diet. Compared to "good"
Davidson, participants perceived "bad" Davidson as more responsible
overall for the boy's death. In accordance with criminal-law theory,
being aware of the risk that the dogs posed to people led to greater
inferences about responsibility.13 4 Interestingly, the effects of bad
character are comparable to the effects of awareness: possessing a bad
character is akin to being reckless to the extent that bad character
gives rise to inferences about blame and responsibility as well as to
inferences about causation. The intentionality data suggest that bad
character motivates unfavorable inferences regarding mental state.
Here, participants perceived Davidson's failure to safeguard unruly
dogs as intent to kill when Davidson was not only aware of the risk but
was also a bad person.
134 See SAMUEL H. PILLSBURY, How CRIMINAL LAw WORKS: A CONCEPTUAL AND
PRACTICAL GUIDE 106 (2009) (stating that a criminal defendant who "acts with awareness of a high
and unjustifiable risk that the result will occur" will be criminally responsible for her
In this set of experiments, we demonstrate empirically that
perceptions of moral character sometimes influences judgments of
blameworthiness. Additionally, this set of studies makes several other
contributions to the literature on blame and character. Our findings
are consistent with Alicke's culpable control model' 3 5-that is, we
demonstrate that negative blame judgments arise not only because of
bad reasons for acting (Experiments 1 and 2), but also because of bad
moral character that is signaled independently from those reasons for
acting (Experiment 3). Alicke argues that bad reasons for acting lead
to greater perceptions of control and more extreme judgments about
blame. 136 We add to this by showing that bad character (apart from
reasons for acting) influences control inferences (such as causation,
intent, and foreseeability) as well as blame judgments. We suggest
that this tendency is rooted in more general theories about motivated
reasoning. Specifically, people are generally motivated to inculpate a
defendant they see as "bad"; this initial motivation leads them to
interpret the defendant's transgression in a way that makes it more legally
blameworthy. Conversely, people are generally motivated to
exculpate a defendant they see as "good," leading them to interpret the
transgression as less legally blameworthy.1 37 Our results are consistent
with the notion that bad moral character prompts an inference to a
desired conclusion, namely, increased blame. Judgments about
greater causal influence and intent are also increased to justify the
blame conclusion, which is likely to follow quickly and intuitively from
the information about the severity of the harm and the moral
character of the actor.
To further explore the phenomenon of motivated inculpation, in
the following section we discuss its implications for legal doctrine with
a specific focus on criminal law.
135 See Alicke, supra note 39, at 556-58.
136 See id. at 568-69; see also Alicke, supra note 40, at 607-10 (demonstrating that an
actor's prior bad or good behavior influences judgments of blame).
137 The conclusion that good moral character influences blamejudgments in a similar,
but opposite, way as bad moral character is supported by the results of Experiment 2,
which contrasted good and bad moral character with a third neutral moral character
condition that acted as a control. Recall that blame judgments for the bad actor were more
severe than the neutral actor; blame judgments for the good actor were less severe than the
neutral actor. The notion that good deeds can license subsequent bad behavior has been
recently demonstrated by Daniel A. Effron & Benoit Monin, Letting People Off the Hook:
When do Good Deeds Excuse Transgressions?, 36 PERSONALITY & Soc. PSYCHOL. BULL. 1618,
1631-33 (2010) (showing that good deeds reduce condemnation when they are in a
different domain (e.g., crusading against drugs) than the subsequent transgression (e.g.,
committing sexual harassment)).
IMPLICATIONS FOR LEGAL DOCTRINE
The results of our experiments have implications that branch
into two different strands. The first is that an actor's motive (along
with its implicit suggestions about moral character) can strongly
influence inferences about causation, intent, and blame. The second is
that moral character, inferred independently from an actor's motive
for creating harm (or the conditions that led to harm) can influence
judgments about causation, intent, and blame. Our findings are most
consequential in legal situations when character or motive
information is most likely to enter the process. In this Article, we have
concentrated on criminal cases, but character and motive can potentially
sway judgments in any kind of case. For example, an employer being
sued for discrimination might introduce evidence that the employee
has a history of cocaine use, either to provide a nondiscriminatory
reason for firing the employee or simply to try to undercut the
employee's claim for emotional-distress damages. Our experiments focus
on blame attributions for acts that the law treats as criminal, and so we
focus our discussion of implications on criminal law and related issues
in evidence. We specifically examine the implications of our findings
on felony murder, evidentiary issues, criminal statutory interpretation,
Motive and Felony Murder
In the first two experiments we report in this Article, participants
associated bad motive with more severe judgments of blame and
responsibility than good motive. These findings mapping intuitive
notions of blame correspond well with modern definitions of mens
rea. 38s The general hierarchy of mens rea139 corresponds to strongly
held intuitions. The criminal law categorizes intentional killings, for
example, as more serious than reckless killings, which are in turn
more serious than negligent killings. 140 Likewise, outside of a legal
context we are more psychologically inclined to blame (or to blame
more harshly) when a transgressor acted intentionally than when he
acted recklessly or negligently. 141 This hierarchy is so deeply
in138 See MODEL PENAL CODE § 2.02(
139 See id. § 2.02(
) (identifying "purposely," "knowingly," "recklessly," and
"negligently" as the four levels of culpability).
140 See PILLSBURY, supra note 134, at 157-59.
141 See John M. Darley et al., Doing Wrong Without CreatingHarm, 7 J. EMPIRICAL LEGAL
STUD. 30, 52 (2010); Lawrence M. Solan & John M. Darley, Causation, Contribution, and
Legal Liability: An Empirical Study, 64 LAw & CONTEMP. PROBS. 265, 284-95 (2001); see also
Carlsmith et al., supra note 4, at 285 (discussing how the "justdeserts" theory of
punishment dictates that the punishment should be proportional to the harm caused by the
grained that even young children invoke it to mitigate their own
responsibility for harm. 42
Historical conceptions of mens rea required finding an evil
purpose in order to impose liability-terms like "vicious will,"
"wickedness," and "malevolence" were common occurrences in judicial
opinions. 143 One prominent manifestation of this idea is traditional
felony-murder doctrine, in which unforeseen deaths that occur
during the commission of a felony are treated as murder. 144 The basis for
this treatment is the malice that is implicit in the underlying felony. 145
Put differently, the implication underlying the doctrine is that in
committing the felony, the defendant acted with an evil mind or evil
purpose such that in doing a bad act the felon has no standing to
complain about being punished for the harmful consequences of her
actions.' 46 This historical conception of mens rea as malice or bad
motive is consistent with the results from the first two experiments,
which show that bad motive is sufficient, in some circumstances, to
justify blame for the harmful consequence even if that consequence is
Accordingly, public support for the felony-murder rule may stem
from the intuition that anyone committing a felony is by definition
acting with an evil motive that in itself may justify liability for any
ensuing harm-even for an unforeseen death. 147 By contrast, the law (and
the public) usually deems an innocent person involved in an innocent
activity that leads to a death as simply involved in an accident. 48 That
accident, however, becomes criminally blameworthy when the person
involved was engaged in a morally blameworthy activity. 149 Felony
murder, therefore, is designed to protect society from people acting
for bad reasons-that is, those who engaged in dangerous felonies
that demonstrate a willingness to harm others. 150 The law is much less
likely to find blameworthy a defendant who can demonstrate that he
142 An example of this is when children say, "But I didn't mean to!" See Thomas R.
Shultz et al., Assignment of Moral Responsibility and Punishment,57 CHILD DEv. 177, 182-83
(1986) (showing that children assign greater moral responsibility to acts involving
intenion than to negligence or accident).
143 See, e.g., James J. Tomkovicz, The Endurance of the Felony-MurderRule: A Study of the
Forces that Shape Our CriminalLaw, 51 WASH. & LEE L. REV. 1429, 1435 & nn.22-24 (1994).
144 See id. at 1433 ("[T]he felony-murder rule provides that the killing of another
human being in the furtherance of any felonious enterprise constitutes the crime of
145 See id. at 1446.
146 See id.
147 See id. at 1472-75.
148 See id. at 1472.
149 See id. at 1472-73; Guyora Binder, The Culpabilityof Felony Murder, 83 NOTRE DME
L. REV. 965, 1032-46 (2008) (proposing an expressive theory of felony-murder culpability
that punishes values expressed through dangerous actions).
150 See Binder, supranote 149.
CORNELL LAW REVEW
was really acting for good reasons but got caught up in producing a
dangerous situation.1 5'
Conversely, the absence of evil motive often motivates the
criminal law to recognize various defenses. 152 Most notably, the duress
excuse is based on the notion that punishment is unjustly imposed on
those who acted out of fear for themselves or their loved ones rather
than out of any evil motivation. 153 Similarly, the self-defense
justification is permitted as a defense to criminal liability when a defendant
can show that he harmed another to avoid harm to himself rather
than out of an evil motive.154
Moral Character and Implicit Mental State Requirements
Aspects of motive commonly come into play as necessary to
understand a defendant's mental state, especially where mental state
requirements use normatively valenced descriptors like "vicious will,"
"wickedness," and "malevolence." Although these terms might
indicate an implicit requirement of bad motive, they might also indicate
an implicit judgment of bad moral character. Historically, certain
crimes involved acts that were viewed as so inherently wrongful that
mens rea was essentially self-proving; the law assumed that any person
who would do such an act acted with a bad intent. 55 Thus, if a killer's
actions evidence an inner wickedness such that he has "an abandoned
and malignant heart," then he is guilty of a more serious grade of
homicide than a killer whose heart was not abandoned and
malignant, even if the abandoned-and-malignant heart killing was
There is reason to think that the Supreme Court has implicitly
held onto the idea that moral character properly informs the criminal
liability analysis. In cases where the defendant might plausibly offer a
version of events in which he was a good guy who got caught up in a
bad situation, it may be the case that the Court is more demanding of
the government and will more readily read in a specific mens rea
requirement, even when it does not appear in the statute being
applied.1 57 Joseph E. Kennedy has argued that this explains the Court's
151 See id. at 1472 ("Wholly accidental killings by otherwise innocent persons are not
criminalized .... [W]e excuse such persons because we can attribute no fault to them.").
152 See Gardner, supranote 29, at 660-67.
153 See id. at 738.
154 See id. at 660-61.
155 See, e.g., Wilkerson v. Utah, 99 U.S. 130, 131 (1878).
156 See id.
157 See, e.g.S,taples v. United States, 511 U.S. 600, 604-07, 614-16 (1994) (requiring a
specific mens rea, despite the lack of such a requirement in the relevant statute, for a
defendant who claimed that he was unaware a firearm he possessed was actually a machine
gun); cf Cheek v. United States, 498 U.S. 192, 194-96, 203-04 (1991) (requiring
knowledge that conduct was illegal, even though the statute included a willfulness requirement,
decision in Staples v. United States,158 in which the Court read a
knowledge requirement into a gun-possession statute criminalizing conduct
that could arguably be unknowing and innocent. 15 9 Similarly, in Cheek
v. United States, the Court read into a criminal tax-evasion statute the
requirement that the defendant knew that his actions violated the law
because the tax laws are complex and because it believed that
Congress did not intend to deem a person who misunderstands that
complexity a criminal. 160 On the other hand, when the crime involves an
inherently wrongful actus reus (for example, robbery) the Court is
hesitant to impose a mental state requirement when it does not
explicitly appear in the statute. 161 "In this sense," Kennedy argues, "only
those of good character need apply for relief under Staples."1' 6 2
In the experiments we present in this Article, participants
perceived a greater degree of intent when the actor's character was bad,
compared to when it was good. In Experiments 1 and 2, Frank Brady
and Sam Norton's bad character was revealed through their bad
reasons for storing flammable substances, and participants perceived
these actors as having acted more intentionally toward the victims'
death compared to actors with good reasons for storing them. In
Experiment 3, by contrast, Sara Davidson's bad character was
independent of the dangerous situation she created with her dogs. Despite
her slothful and unhealthy lifestyle, "bad" Davidson displayed the very
same values as "good" Davidson in failing to control her unruly dogs.
Yet this difference in moral character led to inflated perceptions of
"bad" Davidson's intentions. This pattern of results suggests that
observers' evaluations of the actor's moral character influence more
than just straightforward blaming judgments-bad character gives rise
to inferences about more culpable mental states regarding the
One account of the Court's reasoning in Staples and in Cheek,
then, is that the Justices perceive the possibility that these respective
for a commercial airline pilot who evaded taxes after "learning" that wages were not
taxable income from lectures by members of a tax protest group).
158 511 U.S. 600. The criminal action at question in this case was for the possession of
a weapon capable of automatically firing. The defendant Staples did not dispute his
possession of the weapon but rather claimed that he was unaware of the weapon's ability to
fire automatically. For a discussion of the role of character in this case, see Joseph E.
Kennedy, The Stoy ofStaples v. U.S. and the InnocentMachine Gun Owner: The Good, the Bad,
and the Dangerous, (Univ. N.C. Legal Studies Research Paper No. 1596222, 2010), available
at http://ssrn.com/abstract=1596222. For a more historical discussion, see PILLSBURY,
supra note 48, at 84, which notes that under the mens rea requirements of the English
common law, "[t] he language was that of character judgment, and courts assumed that in
judging the criminal conduct they were making character assessments as well."
159 See Kennedy, supranote 158, at 1.
160 498 U.S. at 199-201.
161 See Kennedy, supranote 158, at 35-36.
162 Id. at 36.
defendants are being good people acting for good reasons, with the
absence of the level of culpability that is otherwise required for serious
felonies such as the ones that were at issue in these two cases.
Perceptions of these defendants' good character may have motivated the
Justices to blame these defendants lightly. Requiring a high level of
mental culpability is consistent with this desire for light blame in these
two instances. The result, then, is a rule imputing a mens rea element
in these two particular offenses.
This account shares some similarities with the moral-evaluation
conception of emotion in criminal law discussed earlier. 163 The
moral-evaluation account holds that impassioned offenders' emotions
express values, and our evaluation of the goodness or badness of those
values leads to our appraisal of full blame, mitigation, or
exoneration. 164 Similarly, the Court in Staples and in Cheek evaluated those
defendants' respective motives as non-evil, and interpreted the
respective statutes as requiring proof of conscious wrongdoing with the end
result that liability was less likely. Finally, the participants in all three
experiments discussed here evaluated the goodness or badness of the
actor's character, perceived their mental state as less or more
intentional, and blamed them less or more, respectively. 165
Moral Character in Evidence
Our experiments also have particularly potent practical
implications for the treatment of character evidence in criminal trials. Our
findings highlight the highly influential potential of evidence of bad
character, even when it is only tangentially related to the crime at
hand. Our results further substantiate the concerns expressed by the
judges that first crafted and applied the common-law ban on
charac163 See text accompanying notes 49-50.
164 See Kahan & Nussbaum, supranote 49.
165 There is an important difference, however, between the moral-evaluation
conception and the account of motivated moral reasoning that we suggest accounts for at least
some of our results. See Dan M. Kahan, Two Conceptions of Emotion in CriminalLaw: An Essay
Inspired by Bill Stuntz, in THE POLITICAL HEART OF CRIMINAL PROCEDURE: ESSAYS ON THEMES
OF WILLIAMJ. STUNTZ (Michael Klarman et al. eds., forthcoming 2012). According to the
moral-evaluation conception developed by Dan M. Kahan and Martha C. Nussbaum, guilt
assessments flow from jurors' perceptions of the moral quality of the defendant's
emotions, regardless of whether those emotions may have reduced the defendant's ability to
freely choose to act. See Kahan & Nussbaum, supra note 49. By contrast, Kahan, offers a
"cognitive conception" of moral evaluation, in which jurors' moral evaluations of a
defendant's emotions influence their perceptions of volition, which in turn drive guilt
assessments. See Kahan, supra. Thus, a defendant whose emotions betray atrocious values is
perceived as acting with full volitional capacity, and is judged fully guilty. See id. In these
experiments we examine character and mens rea rather than emotion and volition, but the
upshot is consistent with Kahan's "cognitive conception" of moral evaluation. In our
experiments, participants evaluated the actor's moral character, which influenced both
blame judgments as well as perceptions of intentionality. Actors with bad character were
seen as having acted more intentionally and were assessed as more blameworthy.
ter evidence. 166 These findings are also consistent with other
empirical work suggesting that the likelihood of conviction increases if a
defendant's prior crimes are admitted into evidence. 167
Restrictions on character evidence are primarily targeted at
evidence meant to prove the defendant's propensity to conform his
conduct to his bad moral character. 168 There are, however, several
exceptions to this general rule. For example, Congress and several
states allow evidence of any past sexual transgressions to be admitted
in cases involving child molestation or sexual assault. 169 A few states
allow the presentation of propensity evidence in cases involving
domestic abuse. 170 Also, if a defendant chooses to testify as a witness, the
Federal Rules of Evidence allow the prosecutor to present character
evidence in the form of "[o]pinion and reputation evidence" that
impugns the credibility of the witnesses.j 7 ' And, as discussed above,
some character evidence can be introduced as motive in order to
prove mens rea.172 Although the Federal Rules of Evidence classify
evidence relating to motive as noncharacter evidence, 173 juries are
See, e.g., State v. Lapage, 57 N.H. 245, 289 (1876) ("The very fact that a man is
charged with a crime is sufficient to create in many minds a belief that he is guilty. It is
quite inconsistent with that fairness of trial to which every man is entitled, that the jury
should be prejudiced against him by any evidence except what relates to the issue; above
all it should not be permitted to blacken his character . . ").
167 See, e.g., Eisenberg & Hans, supra note 15, at 1357, 1380-85 (finding a significant
association between the jury's learning of a criminal record and conviction in cases with
168 See FED. R. EviD. 404(a) ("Evidence of a person's character or a trait of character is
not admissible for the purpose of proving action in conformity therewith on a particular
occasion ....");Norman Krivosha et al., Relevancy: The Necessary Element in UsingEvidence of
Other Crimes, Wrongs, or Bad Acts to Convict, 60 NEB. L. REv. 657, 664 (1981) (tracing the
roots of the common-law ban on character evidence to the 1810 English case Rex v. Cole)
(citing Julius Stone, The Rule ofExclusion of SimilarFact Evidence: England,46 HARV. L. REv.
954, 959, 960-61 (1933)); see also KENNETH S. BROUN, MCCORMICK ON EVIDENCE 311 (6th
ed. 2006) (defining character evidence as "evidence offered solely to prove a person acted
in conformity with a trait of character on a given occasion"); Sherry F. Colb, "Whodunit"
Versus "What was Done": When to Admit CharacterEvidence in Criminal Cases, 79 N.C. L. REV.
939, 941 (2001) ("The rule prohibits the introduction of character evidence to prove that
an individual acted in conformity with his character on the occasion in question.");Julius
Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 HARV. L. REv. 988, 989
(1938) ("So great, runs the thought, was the solicitude of the common law to avoid
damning the accused with prejudice, diffusion, and confusion of issues that, however relevant
and on whatever issue, similar facts and, above all, similar bad acts of the accused were
169 See FED. R. EviD. 413-15; see alsoThomasJ. Reed, Reading GaolRevisited: Admission of
UnchargedMisconduct Evidence in Sex Offender Cases, 21 AM. J. CRIM. L. 127, 159 (1993)
(discussing state law exceptions to character-evidence rules in sexual-assault and
170 See Tom Lininger, Evidentiary Issues in FederalProsecutionsof Violence Against Women,
CORAELL LAW REVIEW
likely to extrapolate information about character from evidence about
a person's priorities, choices, and motivations. 174 Thus, "what we
regulate as 'character evidence' is only a small part of the evidence and
arguments that lawyers use to develop competing versions of the
characters of the actors in the events that are subject to litigation.' 1 75
Despite procedural efforts to control the influence of character evidence
in criminal trials, the competing narratives that prosecutors and
defense attorneys use in criminal cases are largely concerned with
conveying a distinct impression of the character of the parties involved in
the case. 176 As a result of all this, characterizations about the moral
character of the parties continue to enter trials in various ways. 1 77
Moral Character and Proximate Cause
One distinctive feature of the vignettes tested in the three
experiments we report here is that they all involved a force that intervened
between the actors' initial actions and the harms that resulted. For
Frank Brady, a negligent pilot flew in the wrong direction; for Sam
Norton, a youth tossed a burning cigarette butt onto dry leaves; for
Sara Davidson, her dogs attacked a young boy. These types of
situations raise the issue of proximate cause, a doctrine that helps
observers attach blame to an actor for some causes and withhold blame from
actors for other, more remote, causes. 178
See, e.g., Roger C. Park, Character at the Crossroads,49 HASTINGS L.J. 717, 754-55
(1998) (noting that in the context of limiting instructions about character evidence, it is
hard for juries to be "consistent in resisting common sense"); Peter Tillers, What is Wrong
with CharacterEvidence?, 49 HASTINGS LJ. 781, 810, 825 (1998) (suggesting that a
connection exists between motive and character insofar as "human creatures have an internal
system of rules, principles, or operations that regulates... or organizes their behavior" and
"it is logically permissible to suppose that 'character' is 'caused' by matters such as 'choice'
175 Samuel R. Gross, Make-Believe: The Rules Excluding Evidence of Characterand Liability
Insurance,49 HASTINGS L.J. 843, 845-46 (1998).
176 See Kenworthey Bilz, We Don't Want to HearIt: Psychology, Literatureand the Narrative
Model ofJudging,2010 U. ILL. L. REv. 429, 430, 473-75 ("[L]egitimate criminal
condemnation demands complete, rich, narrative trials."); Jim M. Perdue, Winning with Stories: Using
the Narrativeto Persuadein Trials, Speeches & Lectures, 69 TEX. B.J. 984, 990 (2006) (arguing
that "[a] trial story is all about character"); Richard A. Posner, Legal Narratology,64 U. CHI.
L. REv. 737, 738 (1997) (reviewing LAw's STORIES: NARRATWE AND RHETORIC IN THE LAW
(Peter Brooks & Paul Gewirtz eds., 1996) (characterizing trials as competitions between
stories, where the "[p]laintiff and defendant in a trial each tell a story . . . and the jury
chooses the story that it likes better")).
177 For a discussion of these various ways see, for example, Tillers, supra note 174 and
Park, supra note 174.
178 See Welch v. State, 235 So. 2d 906, 907 (Ala. 1970) ("Mankind might still be in
Eden, but for Adam's biting an apple.").
As a criminal-law doctrine, proximate (legal) cause is notorious
for its lack of specific standards to guide outcomes. 179 The
proximatecause inquiry typically focuses on one or more of the following
standards: the remoteness of the result, the foreseeability of the result, the
extent to which the result seems accidental, and the degree of
dependence of the result on another person's act.180 These factors,
however, are difficult to apply with any degree of precision, and the
inquiry typically collapses, either implicitly or explicitly, into a
normative one about whether it seems just to hold the actor morally
responsible for the result under the circumstances. 18 1 The Model Penal
Code gestures toward the normative inquiry when it specifies that the
result must be "not too remote or accidental in its occurrence to have
a Uust] bearing on the actor's liability or on the gravity of his
A cursory look at familiar criminal-law proximate-cause cases
reveals a connection between blameworthiness and liability when we
view those cases through the lens of moral character and motive
rather than through more traditional notions of remoteness and
foreseeability. For example, in a case where the defendants robbed the
victim and left him passed-out drunk on the side of a dark rural
highway, the court found that the robbers proximately caused the death of
the victim who was run over by a passing car. 18 3 In another case, the
defendant led police on a dangerous forty-eight-mile high-speed
highway chase that resulted in the death of a pursuing police helicopter
pilot; the appellate court upheld the finding of proximate cause. 184
But where the defendant participated in a drag race where both cars
crashed through a guardrail and the driver of the other car died, the
appellate court reversed the conviction on proximate-cause
Arguably, these results fit within the pattern found in our
experiments: the worse the moral character of the defendant, as inferred
from the defendant's choice of activity, the more likely we are to hold
him criminally liable for the harm. Admittedly, this is an extremely
small, nonrandomly selected sample of proximate-cause cases. Note,
however, that causation was one of the attributes participants in our
179 See Mark F. Grady, Proximate Cause Decoded, 50 UCLA L. REv. 293, 294 (2002)
(" [Mlany believe that proximate cause is basically incoherent, that its cases cannot be
predicted, and even that they illustrate some fundamental disorder of the common law.").
180 See PAUL H. ROBINSON CRIMINAL LAW: CASE STUDIES & CONTROVERSIES 260 (2d ed.
181 See id.
182 MODEL PENAL CODE § 2.03(
) (b) (1985) (alterations in original).
183 See People v. Kibbe, 321 N.E.2d 773, 776-77 (N.Y. 1974).
184 See People v. Acosta, 284 Cal. Rptr. 117, 120, 129 (Ct. App. 1991).
185 See Velazquez v. State, 561 So. 2d 347, 354 (Fla. Dist. Ct. App. 1990).
experiments rated; in all three experiments, participants gave higher
causation ratings to actors with bad moral character. 186
In Experiments 1 and 2, participants' perception of causation was
arguably consistent with proximate-cause doctrine, at least in its more
explicitly normative form. In both of these experiments, when the
actor had a nefarious motive for storing flammable substances, his
actions were perceived to be a stronger cause of death than when he
had an acceptable motive. Arguably, the law of proximate cause
accounts for these judgments: death resulting from exploding chemicals
is arguably not too remote or accidental to have a just bearing on
liability when the actor's motive is nefarious, such as
methamphetamine production or football cheating. At the same
time, when the actor's motive is virtuous, death from exploding
chemicals is arguably closer to being too remote or accidental to have ajust
bearing on liability. This is closely analogous to the Model Penal
Code's definition of recklessness, which takes into account the
"nature and purpose" of the defendant's conduct for the purpose of
determining whether the defendant's conduct constituted a "gross
deviation from the standard of conduct that a law-abiding person
would observe in the actor's situation."' 8 7 Under each doctrine, the
assessment of the moral quality of the values driving the actor's
conduct leads directly to judgments of causation or recklessness, as the
case may be.
CONCLUSION AND LIMITATIONS
In these experimental studies, we demonstrate that a
transgressor's motive for acting can influence judgments of blame,
responsibility, causation, and intention. We also show that perceptions of a
transgressor's moral character can influence judgments of blame,
responsibility, causation, and intention. We certainly do not claim,
however, that motive and moral character always influence blame-related
judgments. The influence of motive and moral character is subject to
limitations, and we have not yet explored the contours of these
boundary conditions. For example, intentionality is one likely
limitation on the relationship between motive and moral character on the
one hand, and blame related judgments on the other. Note that the
actors in each of the three experiments reported here caused harm
unintentionally: Frank Brady stored flammable chemicals which led to
the unintentional death of a firefighter; Sam Norton stored oxygen
which led to the unintentional death of a youth; Sara Davidson kept
186 Note that in Experiment 3, the mean difference in causality rating between good
Sara Davidson and bad Sara Davidson did not reach conventional levels of statistical
significance. See supra note 126.
187 MODEL PENAL CODE § 2.02(
unruly and dangerous dogs which led to the unintentional death of a
child. These narrow circumstances of recklessly or negligently caused
deaths contain features that influence individuals in the blaming
process to consider the actor's motive and moral character. We will
discuss a few of them here.
First, when the harm of a transgression is severe, such as when a
victim dies, our drive to blame kicks into high gear.18 8 More severe
harm influences us to make not only more severe judgments of
punishment, but also to more likely find that the actor is responsible for
the consequences of his harmful action. 189 For example, when people
read a story about a bank robber whose bullet misses the teller but
ricochets and hits a customer, they are likely to judge the robber as
more responsible, more reckless, and his action more causal when the
injury is severe than when it is mild. 190 In cases like this, a harm-based
version of retributivism can explain why punishment should increase
with severity of harm. That liability judgments should become more
likely with severity of harm is more puzzling but nonetheless
consonant with the notion that we generally treat more severe harm more
harshly. 191 Thus, because of the severity of the harm in our three
experiments, our participant perceivers were highly motivated to blame.
As a result, they were especially motivated to search for information
that could justify this impulse. Bad motive and bad character might
have fit this need.
Second, when an actor's mental state is ambiguous, we often find
it difficult to gauge that actor's blameworthiness. Conversely, when
an actor's mental state is unambiguous, we assign or withhold blame
more easily. When a wrongdoer kills another person intentionally, for
188 SeeJennifer K. Robbennolt, Outcome Severity andJudgments of "Responsibility":A
MetaAnalytic Review, 30J. APPLIED Soc. PSYCHOL. 2575, 2579-81 (2000); Solan & Darley, supra
note 141, at 282.
189 See Mark D. Alicke et al., A Posteriori Adjustment of A PrioriDecision Criteria, 12 Soc.
COGNITION 281, 282, 303-06 (1994); Robbennolt, supra note 188, at 257. But cf Loran F.
Nordgren & Mary-Hunter Morris McDonnell, The Scope-Severity Paradox: Why Doing More
Harm Is Judged to Be Less Harmful,2 Soc. PSYCHOL. & PERSONALITY Sci. 97, 97 (2011)
(finding an inverse correlation between harm to victims and punishment in cases where there is
more than one victim and the victims are not readily identifiable).
190 See D. Chimaeze Ugwuegbu & Clyde Hendrick, PersonalCausality and Attribution of
Responsibility, 2 Soc. BEHAV. & PERSONALITY 76, 84 (1974). Relatedly, observers are
sometimes more likely to blame the defendant depending on the victim's physical attractiveness,
race, or gender. See, e.g., Edward L. Glaeser & Bruce Sacerdote, Sentencingin Homicide Cases
and the Role of Vengeance, 32 J. LEGAL STUD. 363, 364-65 (2003); Norbert L. Kerr, Beautiful
and Blameless:Effects of Victim Attractiveness and Responsibility on MockJurors'Verdicts, 4
PERSONALITY & SOC. PSYCHOL. BULL. 479, 479 (1978).
191 See Robbennolt, supranote 188, at 2601. When no immediate injury occurs but the
potential for future harm exists (such as an increased risk of stroke in the future), people
do not award full compensation. Instead, many prefer to reserve the right to compensate,
via an escrow mechanism, should the injury later materialize. See Darley et al., supranote
141, at 59.
example, we know to assign a great deal of blame; 192 the wrongdoer's
moral character would likely have minimal influence on our blame
perceptions. Note here, however, that we are discussing judgments of
blame and responsibility rather than punishment judgments. 193 A
cold-blooded killer whom people perceive as having a good character
might receive less punishment than if they perceive his character as
bad; even so, judgments of responsibility and blame for the killing
might not reflect any difference in moral character. 194
The picture likely changes, at least to some degree, when we turn
from moral character to motive. The influence of motive on blame
judgments could perhaps still emerge in the context of an actor who
intentionally causes death. We might perceive a person who kills
artother out of greed (for example, for inheritance money) as more
blameworthy than one who is driven by mercy (for example, killing a
terminally ill and suffering loved one). This will be an important
question to explore in future work, and for now we are limited to
mere speculation. Outside of this extreme example, however, it may
be that we assign little weight in our blame judgments to an actor's
motive when that actor acts intentionally because the intentional
mental state overwhelms other influences like motive and moral
Our analysis of boundary conditions is speculative but is
supported by findings in the context of the influence of propensity
evidence (such as prior crimes) on jury verdicts. Recall that Eisenberg
and Hans found that juries who learned of a defendant's prior
criminal record were more likely to convict when the overall evidence was
relatively weak. 195 Thus, the weight of other factors can easily
overwhelm the influence of similar prior acts, and by extension, perhaps
also the influence of moral character and motive on guilt judgments
and blame judgments.
The twin notions of legal guilt and moral blame give rise, perhaps
surprisingly, to an important distinction. The propensity studies
discussed at the beginning of this Article suggest that a jury which learns
about a criminal defendant's prior crimes is more likely to return a
guilty verdict in the case for which the jury is empaneled. 196 These
192 See Bertram F. Malle, Intentionality, Morality, and Their Relationship in
HumanJudgment, 6J. COGNITION & CULTURE 87, 102-05 (2006) (finding that when people evaluate a
negative action, they are especially sensitive to issues about the intentionality of that
193 See Carissa Byrne Hessick, Why Are Only Bad Acts Good SentencingFactors?, 88 B.U. L.
REV. 1109, 1137-61 (2008) (exploring reasons why criminal sentencing takes bad but not
good acts into account).
194 Cf Kahan & Nussbaum, supra note 49, at 368-72 (discussing the role of mercy in
determinations of criminal guilt compared to moral blameworthiness).
195 See Eisenberg & Hans, supra note 15, at 1380-85.
196 See supra notes 15-19.
findings are subject to certain limitations. For example, if the prior
crime is very dissimilar to the one at issue or is not serious, the
influence of the propensity information on the jury's verdict diminishes or
disappears. Likewise, the influence of propensity information on
initial individual juror preferences can dissipate when jurors deliberate
and reach a group verdict. 197
Taken as a whole, the focus of this body of research is different,
and also more specific, than our aim in the experiments we discuss in
this Article. Whereas the propensity studies focus on the influence of
prior crimes, we focus on the influence of two constructs that are
broader in scope: moral character and motive. It may well be the case
that prior crimes serve as a proxy for moral character information so
that prior crimes is simply a subset of the set of information that gives
rise to inferences about moral character. It might alternatively be the
case that the influence of prior crimes works through a slightly
different mechanism that draws more on processes of analogical reasoning
than does the influence of moral character. Recall that the
seriousness of the prior crime is not the only dimension along which the
influence of prior crimes varies; similarity of prior crime might well be
an influence that operates independently of seriousness. Although
observers could logically interpret the seriousness of an actor's prior
crime as a proxy for his moral character, observers are unlikely to do
the same with regard to crime similarity as an independent
One important point in this Article is that the focus of the
experiments reported here is quite different than the focus of the earlier
research on prior crimes as propensity evidence. In addition, the
objects of influence are different in our research as well. The earlier
propensity-evidence studies focused almost exclusively on judgments
of guilt-either in the form of individual mock-juror judgments, or
mock-jury verdicts. In the current experiments, by contrast, we are
interested not specifically in guilt judgments or punishment, but
rather in basic psychological processes of blame and responsibility.
To be sure, these basic processes play a key role in verdicts. But their
importance goes beyond modeling jury behavior. Human beings
inside and outside of the jury box often make intuitive judgments of
blame and responsibility very quickly and automatically as they first
process the story about a transgression.1 9 8 Our initial inclinations
197 See Clary & Shaffer, supra note 17, at 645-50.
198 SeeJonathan Haidt & Selin Kesebir, Morality, in 2 HANDBOOK OF SOCIL PSYCHOLOGY
797, 803 (Susan T. Fiske et al. eds., 5th ed. 2010). There is some evidence that analytic
circuitry of the brain (right dorsolateral prefrontal cortex) is involved when people make
certain kinds of judgments about criminal responsibility; at the same time,
punishmentmagnitude judgments involve emotional circuitry (right amygdala). See Joshua W.
Buckholtz et al., The Neural Correlatesof Third-Party Punishment,60 NEURON 930, 934 (2008).
about whether to categorize the person that we are judging as "good"
or "bad" can motivate us to blame or exculpate him or her. This
initial motivation, in turn, can influence our interpretation of the
person's actions in a way that allows us to excuse their responsibility or to
find them blameworthy for the harm they caused. These quick,
initial, intuitive blame judgments are also likely to play a key role in how
potential litigants perceive a harm-relevant event, how parties
approach dispute-resolution processes, and outside of the legal system,
how ordinary people interact when faced with a perceived wrong.
As our studies demonstrate, however, motivated inculpation can
also enter into the criminal context, where the law has tried-through
the imposition of formalized processes-to separate liability from
character-based inferences. Even here, when we hold constant all
other aspects of the harm an action causes and the situation in which
the harm occurs, the actor's perceived moral character or bad reasons
for acting can still color the way that we determine discrete
components of criminal liability like knowledge, mental state, and
A. Experiment 1: Frank Brady and the Firefighters .... 273
1. Participants...................................... 274
2. Design and Materials............................. 274
3. Results .......................................... 275 a. Judgments of Frank Brady ..................... 275 b. Judgments of the Pilot in Error.. ............... 277
4. Discussion ....................................... 279 B. Experiment 2 : Sam Norton and the Youths ......... 280
1. Participants...................................... 280
2. Design and Materials............................. 280
3. Results .......................................... 281
4. Discussion ....................................... 283 C. Experiment 3: Sara Davidson and the Dogs ......... 284
1. Participants...................................... 285
2. Design and Materials............................. 285
3. Results .......................................... 286
4. Discussion ....................................... 288 III. IMPLICATIONS FOR LEGAL DOCTRINE ...................... 292 A. Motive and Felony Murder ......................... 292 B. Moral Character and Implicit Mental State Requirem ents ...................................... 294 C. Moral Character in Evidence ....................... 296 D. Moral Character and Proximate Cause .............. 298 CONCLUSION AND LIMITATIONS ....................................300
3 But see Kyron luigens , Virtue and Inculpation , 108 I-LARv. L. REv . 1423 , 1458 - 59 ( 1995 ) (arguing that Aristotelian virtue forms the basis for blame and punishment ).
4 See Kevin M. Carlsmith et al., Why Do We Punish?DeterrenceandJustDeserts as Motives forPunishment,83J . PERSONALITY & Soc. PSYCHOL . 284 , 284 - 85 ( 2002 ) ; Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 PSYCHOL . REV. 814 , 814 - 18 ( 2001 ) ; David A. Pizarro & David Tannenbaum, BringingCharacter Back: How the Motivation to Evaluate CharacterInfluences Judgments of Moral Blame, in THE
37 Id. at 369-70.
39 See Mark D. Alicke , Culpable Control and the Psychology of Blame, 126 PSYCHOL . BULL. 556 , 558 ( 2000 ). It is also possible to engage in motivated nonblaming. For example, in one Gallup poll, only 18% of people in six Muslim countries believed that Arabs carried out the attacks of September 11, 2001 . See Lawrence M. Solan, CognitiveFoundationsof the Impulse to Blame, 68 BROOK. L. REV. 1003 , 1021 - 22 ( 2003 ).
40 In a subsequent experiment, Alicke tested likability more broadly and found that an unlikable actor was blamed more for identical harm than a likable actor . See Mark D. Alicke, Evidential and Extra-EvidentialEvaluations of Social Conduct, 9 J. Soc. BEHAV. & PERSONALITY 591 , 596 - 601 , 603 - 10 ( 1994 ).
41 See, e.g., JOEL FEINBERG, DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY 119-29 ( 1970 ) (positing arguments for this theory); GEORGE P. FLETCHER , RETHINKING CRIMINAL LAW § 10.3 .2, at 805- 06 ( 1978 ) (discussing theory that ties moral character to legal blameworthiness).
42 See FLETCHER , supra note 41.
43 FEINBERG, supra note 41, at 126; seealso FLETCHER , supra note 41, § 10.3 .1, at 801 ( "[T]he question [of ajust conclusion of culpability] becomes whether a particular wrongful act is attributable either to the actor's character or to the circumstances that overwhelmed his capacity for choice.").
49 See Dan M. Kahan & Martha C. Nussbaum , Two Conceptions ofEmotion in Criminal Law, 96 COLUM. L. REv. 269 , 368 - 72 ( 1996 ) ; see also CYNTHIA LEE, MURDER AND THE REASONABLE MAN: PASSION AND FEAR IN THE CRIMINAL COURTROOM ( 2003 ) (arguing that majorityculture defendants often successfully rely on dominant social norms like masculinity and heterosexuality to successfully argue that their violence was partially or fully justified); Victoria Nourse, Passion'sProgress:Modern Law Reform and the ProvocationDefense, 106 YALE L .J. 1331 , 1332 ( 1997 ) (criticizing modern reform in the "crime of passion" defense and concluding that reform "leads to a murder law that is both illiberal and often pervasive.").
50 See Kahan & Nussbaum, supra note 49.
51 See, e.g., Ekow N. Yankah , Good Guys and Bad Guys: PunishingCharacter,Equality and the Irrelevance of Moral Characterto Criminal Punishment, 25 CARIozo L . REv. 1019 , 1027 ( 2004 ) (arguing that conclusions about immoral character creates a "permanent criminal caste" ).
52 See generallyAlicke, supranote 39 , at 569-71 ( studying how people attribute blame).
53 See supra notes 12-13 and accompanying text.
54 See Eileen Braman & Thomas E. Nelson, Mechanisms ofMotivated Reasoning?Analogical Perceptionin DiscriminationDisputes, 51 Am.J. POL. Sc . 940 , 941 ( 2007 ).
55 See, e.g., Peter H. Ditto & David F. Lopez , Motivated Skepticism: Use ofDifferentialDecision Criteriafor Preferredand Nonpreferred Conclusions,63 J. PERSONALITY & SOC. PSYCHOL . 568 , 581 - 82 ( 1992 ) ; Dan Simon, A Third View ofthe Black Box: CognitiveCoherence in Legal Decision Making, 71 U. CHI. L. REV . 511 , 541 - 42 ( 2004 ) ; Eric Luis Uhlmann et al ., The Motivated Use of Moral Principles,4JUDGMENT & DECISION MAKING 476 , 489 ( 2009 ).
56 The study found no such difference for men . See Ziva Kunda, Motivated Inference: Self-Serving Generation and Evaluationof Causal Theories, 53 J. PERSONALITY & Soc. PsYcHOL . 636 , 646 ( 1987 ).
57 See id . at 644.
58 See id.
59 See Linda Babcock et al., BiasedJudgments of Fairness in Bargaining,85 AM. ECON. REv . 1337 , 1342 ( 1995 ) [hereinafter Babcock et al ., BiasedJudgments];Linda Babcock et al., Creating Convergence: DebiasingBiased Litigants , 22 LAw & Soc. INQUIRY 913 , 915 ( 1997 ) [hereinafter Babcock et al ., Creating Convergence];Linda Babcock & George Loewenstein , Explaining BargainingImpasse: The Role of Self-Serving Biases, I IJ . ECON . PERSP. 109 , 110 ( 1997 ).
69 See Kunda , supra note 56 , at 646.
70 See Peter H. Ditto et al., Motivated Sensitivity to Preference-InconsistentInformation,75J . PERSONALITY & SOC. PSYCHOL . 53 , 54 , 64 - 67 ( 1998 ).
71 See Babcock et al., BiasedJudgments , supranote 59 , at 1339-42; Dan Simon et al., The Emergence of Coherenceover the Course ofDecisionMaking, 27J . EXPERIMENTAL PSYCHOL.: LEARNING, MEMORY & COGNITION 1250 , 1257 ( 2001 ).
72 See William M. Klein & Ziva Kunda, MaintainingSelf-Serving Social Comparisons:Biased Reconstruction of One's Past Behaviors, 19 PERSONALITY & Soc. PSYCHOL. BULL . 732 , 737 ( 1993 ).
73 See Christopher K. Hsee , ElasticJustification:How UnjustifiableFactorsInfluence Judgments, 66 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 122 , 122 - 23 , 128 ( 1996 ).
74 See id . at 123-24.
75 See Ziva Kunda , The Casefor Motivated Reasoning , 108 PSYCHOL. BULL. 480 , 482 - 83 ( 1990 ); Tom Pyszczynski & Jeff Greenberg, Toward an Integration of Cognitive and MotivationalPerspectives on Social Inference: A Biased Hypothesis-TestingModel, 20 ADVANCES IN EXPERIMENTAL SOC . PSYCHOL . 297 , 319 - 23 ( 1987 ).
76 Jon Hanson & David Yosifon , The Situation:An Introduction to the SituationalCharacter, CriticalRealism , PowerEconomics, and Deep Capture, 152 U. PA. L. REv . 129 , 138 ( 2003 ).
77 See Charles G. Lord et al., Biased Assimilation and Attitude Polarization:The Effects of Prior Theories on Subsequently ConsideredEvidence, 37 J. PERSONALITY & Soc. PSYCHOL . 2098 , 2098 ( 1979 ).
78 See id.
79 Motivations to seek justice can also influence subsequent behavior, even in unrelated domains . See Kenworthey Bilz & Janice Nadler , Law, Psychology, and Morality, in MORAL JUDGMENT AND DECISION MAKING 101- 24 (Daniel M. Bartels et al. eds., 2009 ) (concluding that a mismatch between law and community attitudes can result in a behavioral backlash); Elizabeth Mullen &Janice Nadler , Moral Spillovers: The Effect of Moral Violations on Deviant Behavior , 44 J. EXPERIMENTAL SOC. PSYCHOL . 1239 , 1244 - 45 ( 2008 ) (discussing how perceived moral violations can cause moral spillovers, increasing subsequent deviant behavior); Janice Nadler, Flouting the Law , 83 TEX. L. REV. 1399 , 1426 - 29 ( 2005 ) (finding that perceived injustice in legislation and judicial decisions can lead to lower levels of everyday legal compliance).
80 See Mitchell J. Callan et al., The Effects ofJustice Motivation on Memory for Self- and Other-RelevantEvents , 45J . EXPERIMENTAL SOC. PSYCHOL . 614 , 615 ( 2009 ) ; see also Babcock et al ., Creating Convergence , supranote 59 , at 916 (discussing "hindsight bias" ).
81 See Callan et al., supranote 80 , at 616.
82 See Klein & Kunda, supra note 72, at 737-38.
83 See Callan et al., supra note 80 , at 619. Conversely, those who had not received the lucky break were able to recall more bad deeds from their past than those who had received the lucky break . See id.
84 See id . at 619-20.
85 A related claim is that, in assessing blameworthiness, we tend to infer personality trais from behavior. Thus, we reason, if Smith injured Jones, it must be because Smith is a bad person. At the same time, we tend to ignore or give insufficient weight to situational pressures that might have led Smith to injure Jones. Donald Dripps calls this the "fundamental retribution error." See Donald A . Dripps, FundamentalRetributionError:CriminalJustice and the Social Psychology ofBlame, 56 VAND. L. REv. 1383 , 1426 ( 2003 ). Our focus in this Article is different: we examine the influence of information about character that is sepa-