THE NERD DEFENSE 741
through competing positions in order to arrive at the truth.^77
However, jurors hinder the truth-seeking process when they
consider evidence that is deemed inadmissible due to its
prejudicial effects.^78 Though not always irrelevant,^79 character
evidence that is used to prove that a defendant acted, in a
specific instance, in conformity with a character trait is often so
weakly probative of guilt that the prejudice of admitting such
evidence is likely to substantially outweigh the evidence’s
probative value.^80 Character evidence is traditionally forbidden
because evidence of a defendant’s particular character trait does
not necessarily correlate to a defendant having “acted in
(^77) Strier, supra note 22, at 100 (“Arguably, the most compelling claim
supporting the adversary system of trial court dispute resolution is that it is
the best judicial system for truth-finding.”); see also Barbara A. Babcock,
Introduction: Taking the Stand, 35 WM. & MARY L. REV. 1, 9 n.31 (1993)
(noting that the Supreme Court "has recognized that the purpose of a trial is
to sort truth from untruth").
(^78) See Michelle Pan, Strategy or Stratagem: The Use of Improper
Psychological Tactics by Trial Attorneys to Persuade Jurors, 74 U. CIN. L.
REV. 259, 262 (2005); see also Barrett J. Anderson, Recognizing Character:
A New Perspective on Character Evidence, 121 YALE L.J. 1912, 1928–29
(2012) (stating that “[l]egal historians have commonly understood courts to
have developed the law of evidence to prevent jurors' ‘cognitive and
decisional failings’ from impacting their solemn duty to find the truth,” but
also noting that despite such laws, jurors are often unable to properly
consider character evidence) (citing Frederick Schauer, On the Supposed
Jury-Dependence of Evidence Law, 155 U. PA. L. REV. 165, 199 (2006)).
(^79) A defendant’s appearance may become relevant evidence if it “forms
the basis for identification.” Laurie L. Levenson, Courtroom Demeanor: The
Theater of the Courtroom, 92 MINN. L. REV. 573, 577 n.19 (2008).
(^80) Aviva A. Orenstein, No Bad Men!: A Feminist Analysis of Character
Evidence in Rape Trials, 49 HASTINGS L.J. 663, 669–70 (1998) (“Even
assuming that such [character] evidence is reliable, a proposition which is
itself open to doubt, character evidence can be invasive, unfair, and
prejudicial.”); see also FED. R. EVID. 403 (“The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.”); United States v. Baytank, 934 F.2d 599, 614 (5th Cir. 1991)
(noting that an instruction to introduce character evidence should be refused
where character evidence is not “central or crucial”).