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Judgments 2005-2006

On this page: Manderson J. | Yachnin J. | Engle J. | Klinck J.

A Question of Character: Laird vs The Crown [2005] 4 C. of Sh. 1

Matter No.…………4/2005
Hearing Date………10/11/2005
Applicants 1: Claire Ezzeddin and Karen Oberer
Respondents 1: Christopher Halfnight and Katie Musgrave

Justice Manderson

Judgment coming soon

Justice Yachnin

Judgement coming soon

Justice Engle

Tristan King is beaten to death on Guy Fawkes Day. The apparent instrument of death, a bloody paperweight, rests on the desk of his soon-to-be-fired, cost-cutting, profit-promoting, widely-disliked subordinate, Gaston Laird. King and Laird were known to hate one another. Laird's defence includes both an alternative candidate as murderer (a violent man King was cuckolding) and extensive evidence of Laird's charitable activities and chaste family life. The Crown, now that Laird's character has become an active aspect of the case, introduces into evidence an incident from Laird's past: in his youth he served a six-month sentence after being convicted for aggravated assault of a supervisor. Laird's conviction for murder, appealed to this court of Shakespeare, thus rests on undisputed material evidence of means (a murder weapon found in his office); undisputed circumstantial evidence of motive; and a parallel incident from Laird's past that undermines claims that his upright character might render such a crime unlikely. The Court of Shakespeare has been asked to think especially hard about character evidence and circumstantial evidence in judging the appeal.

My Lords, in rendering judgment in this important case, I see two possible paths before me. The shorter and less crooked follows the sensible Shakespearean way-making query, "What need the bridge much broader than the flood?"1 Our court of Shakespeare is asked to rule on whether Gaston Laird deserves a new trial because, by approved legal means, the prosecution in the Crown's case against him was able to introduce into his murder trial undisputed evidence that he had, earlier in his life, been capable of extreme violence against a supervisor. Claire Ezzeddin and Karen Oberer, counsel for the appellant, have not disputed the introduction of this evidence about Laird's character on grounds of the rules of exclusion of evidence in ordinary criminal courts, but rather on the ground that character evidence is shown to be unreliable by many Shakespearean examples of character change. Counsel for the appellant have further claimed that unless stability of character were held to be "significantly predictive" or even "deterministic" of future behavior,2 character evidence cannot be used in a matter of such gravity because it is so powerfully influential while being insufficiently reliable. Christopher Halfnight and Katie Musgrave, counsel responding for the Crown, have held that Shakespearean character is stable and reliable, and that courts, both Crown and Shakespearean, are capable of judging how heavily it should weigh in particular circumstances, so that it would be wrong to exclude it.3 Their brief has both cogency and the added rhetorical virtue of flattering the court while implying that appellants insult its powers of disinterested judgment. Shakespeare's own practice, while rich in instances of character change, misleading circumstantial evidence, and errors of judgment, nevertheless has not been shown by appellant counsel to endorse the exclusion of evidence to promote fairness in judgment. Indeed, counsel for the appellant have not offered examples of Shakespearean exclusions of this kind. More seems to be better, as far as Shakespeare's attitude toward knowledge of human behavior is concerned, and errors in fact arise more frequently from a rush to judgment with insufficient weight given to knowledge of character than from too much reliance on character evidence. Appellants have discussed the unreliability of character evidence much more extensively than the unreliability of circumstantial evidence. Thus, taking the shortest path, it would be easy to rule that Laird's conviction should stand, and to rule in favor of the Crown. Our Court of Shakespeare made a preliminary ruling to this effect, and I ruled with Justice Yachnin and delivered that verdict.

In its deliberate preparation of final judgments, my Lords, this court has larger and more pungent fish to fry, and their scent beckons us to a longer and more winding path. Behind the arguments of both the appellants and the respondents in this case, and behind both sides in the adversarial process in cases brought recently before other Courts of Shakespeare of authority approaching that of the one on which I have the honor to sit, lurk three awkward patterns of Shakespearean fact. I offer these patterns advisedly, bearing in mind the admonition of Justice Bolongaro in Pears that:

The laws of Shakespeare must be grounded in fundamental principles which exhibit a normative logic, not on mere empirical reconnoitering of what is said and what is done in the literary texts (though, obviously, what is said and what is done provide the material from which an interpretation is worked out). In terms of method, I want to warn applicants that persuasive arguments in favour or against a proposition must be based on a close, sensitive, principled and encompassing reading of the corpus. On the other hand, it is not persuasive and is in fact damaging to use the rich variety of statements and situations in Shakespeare as a smorgasbord from which to pick out whatever proposition best suits a particular interest. (1 C. of Sh. 2)

Accepting Bolongaro, I offer up my claims, knowing that they may be disputed by others whose reading of Shakespeare can be shown to be closer, more sensitive, more principled, or more encompassing than my own. Any judge is subject to to this revisionary future: it is part of the beauty and terror of our work. Yet as Bolongaro points out, such generalizing claims are vital to the extraction of meaningful precedents from the Shakespearean corpus and thus to advancement of Shakespearean law.

The three patterns are these, my Lords. First, in matters of criminal investigation, or the informal processes similar to modern forensic practice that Shakespeare dramatizes, Shakespeare does not ever show justice being fully served by either circumstantial or character evidence. Second, in criminal trials, or in the public processes similar to criminal trials that Shakespeare dramatizes, Shakespeare never shows courts or other judicious bodies serving justice through a disinterested weighing of evidence. Third, Shakespeare virtually always arranges for audiences, who sit in ultimate judgment in his plays, either to hear a confession of a past crime or to witness the arrangement or enactment of present crimes, thus establishing not only the priority of direct evidence but, to a degree that must seem exceptional from the viewpoint of a modern court, the availability of such evidence when a significant crime has taken place.

While the first and third points obviously bear directly on the issues raised in this case, the second point is also at least potentially important. Halfnight and Musgrave, as counsel for the Crown, have urged us to rely on the judgment of courts in sifting evidence of character and circumstance, but the Crown here may be relying on the qualities of modern courts rather than qualities likely in a Court of Shakespeare that operates according to Shakespearean norms. Courts represented in Shakespeare are not immune from the local passions and conflicts that make human beings dangerous interpreters. Rather the reverse: courts and other judicious bodies are always already engaged in a variety of conflicts and processes that shape their reception of evidence of all kinds. Shakespearean representation of tribunals of justice indeed suggests that reliance on their fairness and objectivity, their capacity for disinterested judgment (of the sort invoked by respondent counsel) would be grossly misplaced. As Justice Yachnin remarks in Bard de la Mer, "Shakespeare tends to regard institutionalized law with skepticism."4 Though in this trial counsel for both appellant and respondent have invoked Othello and have offered Emilia as a just judge, and the Venetian Senate as a just tribunal, both Emilia and the Senate are thoroughly engaged in the actions in which they bear judgment. The Senate's eagerness to be fair and generous to Othello in Brabantio v. Black Magic is in direct proportion to its need to have him as a general against the Turks, and Emilia's ultimately correct judgment of the relation between Desdemona and Othello derives directly from her painful experience with her own husband Iago--she has the sort of past that would get her excluded from any carefully-selected jury in trying a case of spousal violence. Even Escalus in Measure For Measure, cited as a true judge by Justice Manderson in Bard, is noticeably swayed by personal and class solidarity in discussing Claudio's case, and is led by the messy complexities of circumstance and testimony to defer judgment as basically impossible in Elbow v. Froth and Pompey.5 In this, I dilate on various of the judgments rendered in Bard, the case in the Court of Shakespeare that has most diligently treated the relation between what Justice Jordan terms "positive law" and what she sees as the more wide-ranging, natural, and sometimes divine law of Shakespeare.6

More important, however, are patterns one and three: the pattern of unreliability of circumstantial and character evidence and the pattern of the availability of direct witness or confession of crimes. These patterns of Shakespearean fact, taken together, harm both the specific arguments of the appellants and, more deeply, the general position taken by respondents.

Let me flesh out these patterns with further examples. In cases where a criminal act is alleged or has been committed in Shakespeare and the audience has to decide what has happened, resolution as a rule comes only from a perpetrator's direct confession of either crime or criminal intent7 or the audience's direct experience in viewing the crime or alleged crime.8 Usually the audience serves as an eyewitness for the alleged crime, so that the retrospective attempts of characters to understand and resolve the problems are ironized in ways that cast the operation of dramatized courts into question. Sometimes even apparent confession, as in Desdemona's dying attribution of blame for "this deed" to "nobody; I myself,"9 can be misleading and is seen to be so by an audience that knows more than any character onstage. Iago's "what you know, you know" at the end of Othello may remind the appalled Venetians of how little they know, but it reminds the Shakespearean audience that it knows a great deal.10 That is its usual situation.

Turning to the first pattern, if one were to construe the appellant's suggestion that we should exclude character evidence as a claim that we can rely on circumstantial evidence of other kinds in its stead, one could reject the suggestion with confidence and even with horror. Circumstantial evidence in criminal cases in Shakespeare is almost always wrong and often faked, as the selection and placement of the fatal paperweight in this case might well be argued to have been. Moreover, the use of the paperweight as a weapon, if it was so used by Laird, and its subsequent non-concealment, suggest the passionate improvisation of manslaughter rather than the cool premeditation involved in murder. In Shakespeare, circumstantial evidence is of course particularly not to be trusted when it urges suspicion of the chastity of a woman of good character.11 But it is also unreliable in other cases: Laird's bloody paperweight reminds one of the bloody daggers Lady Macbeth places by the intoxicated guards in the murdered Duncan's chamber to produce false circumstantial evidence of their guilt. Nonetheless, even with these Shakespearean suspicions of circumstantial evidence in mind, as appellant's brief has persuasively shown, to rely instead on one's knowledge of character in Shakespeare is to be in for many a harsh surprise.

My Lords, where do these patterns leave us? We sit in an appellate proceeding, not a script conference for an episode of Perry Mason or a revision of Hamlet, so as judges we are in no position to arrange for Gaston Laird to appear before us and open his inner thoughts. By the rules of our court, appellant and respondent could not avail themselves of Laird's presence either, though in a more Shakespearean process they surely might, or might belatedly introduce the garbled testimony of some janitorial Dogberry who witnessed the actual crime. We are rather in the position of readers attempting to interpret a puzzling set of texts concerning a crime and obliged to render judgment on it by producing more writing to be read by others, as Ronald Dworkin has persuasively described the judge's practice.12 Yet as a Court of Shakespeare, a court whose processes may be those of a modern appellate court, but whose body of human statute and precedent is Shakespearean, our own evaluation of evidence needs to model itself on Shakespearean patterns of evaluating evidence. And for Shakespeare, guilt expresses itself in witnessed action or confession.

Why should this be? Doubtless partly, for reasons suggested above, because the dramatist can make guilt so express itself. Perhaps also, and more disturbingly, because Shakespeare's lifetime coincided almost exactly with the short period in the history of English law in which torture was used to exact confessions from defendants in criminal cases.13 It would be inappropriate to think of Shakespeare as an advocate of the painfully-exacted confession as the standard of truth. Indeed, his reliance on fuller exposition of circumstances and on the internal pressure of human desire to offer unexacted confessions might constitute a critique of torture as well as a condemnation of indirect evidence. His plays, however, for whatever reasons, do show a commitment to the ways in which confessions emerge from the internal moral difficulty of concealing the truth and the ways in which witnesses exist to most significant human actions. In their representations of crime, Shakespeare's plays offer a window on what one might ideally know in order to judge the erring actions of another human being, and they also offer monitory examples of how we may misjudge on the basis of partial or fabricated evidence. As such, they set an unusually high evidentiary standard for convictions, a standard substantially higher than that met by the case against Gaston Laird. Given that past judges in the Court of Shakespeare have invoked Escalus in Measure for Measure as a model, it may be helpful to point out that, when sufficient clear evidence of guilt is not forthcoming, Escalus informs Elbow that he releases Pompey "to continue in his courses till thou know'st what they are."14 While this court would not, by ordering a retrial, release Gaston Laird to continue in all his courses, it does offer the possibility that Shakespearean processes of remorse, or the frequently tardy but rarely absent Shakespearean processes of revelation, will have time to operate more fully than they did in his first trial. If so, we may indeed pass judgment on Gaston Laird's actions, for we will know what they are.

My Lords, I rule with the appellants to grant Gaston Laird a new trial, in the Shakespearean expectation that truth is the daughter of time and the consequent hope that either a confession or new reliable firsthand information about the death of Tristan King will emerge in the course of act three. I also urge the retrying court to weigh carefully whether the circumstantial evidence of Laird's crime will support a charge of murder rather than one of manslaughter.

1. Much Ado About Nothing 1.1.304.
2. Ezzeddin and Oberer, "Factum of the Appellant," 4 C. of Sh. 1, pp. 6, 10.
3. Halfnight and Musgrave, "Factum of the Respondent," 4 C. of Sh. 1, p. 17: "to seek the meaning of the circumstantial evidence with both narratives, as well as many others, is to have faith in the ability of the court to judge."
4. Yachnin J., 4 C. of Sh. 1, 2004.
5. See Manderson J., 4 C. of Sh. 1, 2004: "It is not, I believe, that Escalus has no interest in rules or in his own accountability to them, but rather that he is prepared to think about what their purpose is in his world, and to craft a solution specifically sensitive to the experiences of the people before him. He is the master, not the slave, of the rules, and the master, not the slave of discretion. In this he is quite different from the other legal models we have been considering." On the trial in question, see L. Engle, "Measure for Measure and modernity: the problem of the skeptic's authority," in Hugh Grady, ed., Shakespeare and Modernity: Early Modern to Millenium, London and New York, Routledge, 2000, pp. 85-104.
6. See Jordan J., Bard de la Mer, 4 C. of Sh. 1, 2004.
7. See Claudius in the prayer scene in Hamlet, Iago in soliloquies on repeated occasions in Othello, the future Richard III at the opening of Richard III, Edmund in soliloquy early in Lear, Angelo in soliloquy in Measure. Instances could easily be multiplied.
8. We view the planning and, in all but the first case, the execution of the murders in Macbeth; we view the planning and execution of deceptions that involve the allegation of crime in Richard III, Othello, Much Ado, Cymbeline, Lear. Iago's "what you know, you know" at the end of Othello may remind the appalled Venetians of how little they know, but it reminds the Shakespearean audience that it knows a great deal. That is its usual situation.
9. Othello 5.2.128.
10. Othello 5.2.311.
11. E. g. Hero in Ado, Imogen in Cymbeline, Desdemona in Othello, Hermione in Winter's Tale.
12. "Integrity in Law," in Law's Empire (Cambridge, MA: Belknap Press of Harvard University, 1968), pp. 225-31.
13. See Elizabeth Hanson, "Truth and Torture in Renaissance England," Representations 31 (Spring 1991), pp. 53-4, 79-80. Hanson relies substantially on John Langbein, Torture and the Law of Proof (Cambridge: Harvard University Press, 1977) for the history of torture in the period. Langbein's discussion makes it clear, as Hanson points out, that torture was not used exclusively in cases involving heresy or treason, though its use under Elizabeth was doubtless partly a response to a perceived threat from Catholic plots.
14. Measure for Measure 2.1.88-9.

Justice Klinck

The grounds of appeal in this case appear to be, broadly, three. (1) In the law of Shakespeare, "character"--our assessment of what defines another--must be distinguished from "identity"--which involves our subjective, and ostensibly authentic, experience of ourselves. While the latter may be a reliable basis for predicting subsequent conduct, the former is mutable and therefore not so predictive. (2) That assessments of character, "'external' traces of the other's "'internal' identity," for various reasons cannot be trusted; there is always a "doubt" as to character. (3) Given the doubtfulness of interpretations of character, "faith" and "mercy" must be deployed, and that these 'theological' virtues direct us to resolve the doubt by excluding the evidence. These are thoughtful--not to say ingenious--arguments, which, though enticing and persuasive, ultimately do not withstand further scrutiny.

1. "Character" and "Identity"

We are attracted by dichotomies, by representations of "reality" that assign our experience to clearly-demarcated categories. This is part of the attractiveness of the distinction that posits a fairly stable subjective "internal" identity in opposition to a less stable "external" character. But such a polarity is highly problematic in the law of Shakespeare.

Counsel for the appellant, perhaps inadvertently, acknowledge this in their attempts to describe "identity" and "character." For example, they quote John Bayley, who contrasts character not with identity, but with (self)-"consciousness." Does the substitution of the term "consciousness" in the dichotomy implicitly equate "consciousness" with "identity"? If so, we know that our consciousness can be as inauthentic, or more inauthentic, than others’ assessments of us. This seems clear in the law of Shakespeare.

Thus, what we consider the main action of The Taming of the Shrew is framed by a situation in which a character’s (Christopher Sly’s) consciousness of himself (and perhaps his "identity") is destabilized--in fact, re-constructed by others. Arguably, this calls into doubt all the "identities" that follow in the play. More significantly (in so far as we might be tempted to assume that tragedy, because it is "serious," is more significant than comedy), Othello’s consciousness of himself is radically unreliable: for example, he tells Iago that, if Iago can prove Desdemona’s infidelity, on that proof he will dismiss both love and jealousy (III.iii.191-92). This not long before his Pontic Sea speech, in which he speaks of his "bloody thoughts, with violent pace" which look to be "swallowed up" with a "wide revenge" (III.iv.457-60).

Similarly, counsel for the appellant suggest that "character" might be understood in terms of, among other things, "reputation." This introduces another complicating term into what appears to be a clear dichotomy. We will recall that, after Cassio’s vinulous indiscretion, it is the loss of his "reputation" that he bemoans, and, at least to him, his reputation is "the immortal part of myself" (II.III.262-63). Appellant’s counsel regard "reputation" as one sign of, or component of, "character"; to Cassio, it may comprehend not only the whole of his character, but in some sense his very "identity." We do not mean to imply that what one emotionally-overwrought and probably vain character says is an accurate reflection of the law of Shakespeare. But it again suggests the problematic nature of attempting to draw a clear line of demarcation between "identity" and "character." For Cassio at least--and very likely for Othello, and, indeed, for Antony, who tells Octavia "If I lose mine honor,/I lose myself" (III.iv.22-23), as well--what he is or what he understands himself to be is very much a function of what others perceive him to be. To paraphrase Novalis’s dictum that character is fate, we might say that, in some contexts in the law of Shakespeare, character is identity.

This kind of point arises in other contexts as well. If Cassio understands himself in terms of his reputation, other characters’ significations of themselves are compromised by others being positioned to read them more completely. To some degree, this anticipates the second issue--the problem of accurate interpretation of character--but, at this stage I want to make a narrower point. That is simply that a person’s representation to others is complex, and that what she or he thinks of as an authentic sign of identity may be less than what others can perceive. The point is related to, but not the same as the one that I have made about Othello--that his assessment of his identity inaccurately predicts what that identity will subsequently be revealed to be. My point here is that the words and actions of a character may simultaneously reveal more about him, his ‘true nature,’ than he knows. Another way of putting this is to say that we can deliberately represent ourselves in a certain way, but at the same time we may reveal things about ourselves of which we are ourselves unaware. Psychiatrists speak of "the mask of depression"--a "mask," to be sure, but not a mask of the patient’s contriving, but symptomatic of something beyond his control, a mask that does not disguise, but that reveals. So, when Othello tells Iago, "If I do prove her haggard//Though that her jesses were my dear heart-strings/I’ld whistle her off, and send her down the wind /To prey at fortune" (III.iii.260-63), he is constructing himself as the (provisionally, pending "proof") wronged husband, prepared to sacrifice what is nearest to his heart. At the same time, the metaphor he employs tells us something essential about him that he seems not to know. What is nearest to his heart is a captive bird that by definition is subservient to its master, that is an instrumentality in his projects. Othello can choose to portray himself as he likes; but the language he employs reveals another dimension of what he is. And his presentation of himself, precisely because it is in some sense selected, may be less authentic than the verbal imagery he employs--perhaps in spite of his conscious self. The metaphor, is--to use C.S. Peirce’s term--in some way, or to some degree, an index of what Othello is--a sign related in a causal, and not merely a volitional, way to what it signifies. His words a few lines later--"keep a corner in the thing I love/For others’ uses" (III.iii.272-73; my emphasis)--is similarly revelatory of his radical attitude towards Desdemona.

Again, I am not at this point addressing the competence of any particular interpreter. I am merely noting that there are different kinds of "traces" of identity--some of which might be both more perspicuous to the outside observer, and more compelling as evidence. In passing, it might be observed that Petruchio in The Taming of the Shrew uses the same metaphor as Othello--"my haggard" (that is, "untamable" bird of prey)--for Katherina. Unlike Othello, however, Petruchio appears quite deliberately and candidly to represent his "love" in these deprecatory terms: indexicality is merged in symbolicity.

The appellant argues that because, in the law of Shakespeare, character changes over time, it may--or even must--be unreliable as evidence. In view of what I have just said, however, this position must be nuanced by asking questions such as: "What is it that changes over time?" and "Might apparent change merely be different manifestations of the same thing, involving, for the perspicacious reader of character a deeper consistency?"

Take the case of Desdemona. The appellant’s position is that Brabantio’s warning to Othello, "She has deceived her father, and may thee"--an assessment of her character--turns out not to be predictive of her subsequent conduct. But whether her subsequent conduct is consistent or not depends upon our appreciation of the meaning of the act which for Brabantio amounts to "deceit." For one thing--and this again anticipates the second issue--Brabantio is not an unbiased observer, so we cannot assume that his assessment is accurate or exclusive. Another reader of her character might see her action as a function not of guile, but of guilelessness. Thus, for example, Iago, who--whatever else he may be--is a perspicacious interpreter of others, knows that her "bless’d disposition," her very goodness, can be a "net," a trap (III.iii.320, 361). From a perspective other than Brabantio’s, Desdemona’s clandestine marriage to Othello figures forth her naiveté, her innocence, and her consequent obliviousness to the effect of her actions upon others. This is repeated in what appears to be her relentless obtuseness in not realizing the effect of her pleas for Cassio upon Othello, and in her unblemished belief that there can be no women who "abuse their husbands/In such gross kind" (IV.iii.62-63). At one level and to a partial observer her marriage may be "deceit," and therefore not predictive of her fidelity to Othello; at another level, her marriage evinces her inability to imagine evil, or evil thoughts, and those who read her aright are able to exploit this devastating consistency in her character.

The appellant points as well to the case of Antony, observing that from being a "great general" he has become "an aging lovesick playboy." But has Antony changed, or is he just realizing a previously-unexpressed dimension of his character in an unwonted context? That is, is the "change" in Antony a function of the instability of character, or of the instability of circumstance? Just as Othello’s finding himself in an unfamiliar, domestic situation releases potentialities in his character that had not previously been expressed, so does Antony’s finding himself in the toils of love. The law of Shakespeare tells us that character--even if conceived of as what others can see in us--is predictive of subsequent conduct in similar situations, although what is latent in a person’s make-up may be unexpectedly revealed in uncharted or unprogrammed contexts. In the case at hand, it cannot be said that the act for which Gaston Laird was convicted arose in a context unlike that of the act invoked as an indication of his character.

Katherina, in The Taming of the Shrew, may be a more problematic case: her character does seem to change significantly. Her "transformation" must, however, be treated with caution as an indication of the law of Shakespeare in this regard. For one thing, it is part of the plot of a comedy--and comedic effect depends in part upon the depiction of the incongruous, or even the wildly improbable. Implicit in the law of Shakespeare is that it is to be apprehended in terms of the spirit in which it was inscribed. So, to accomplish his dramatic intent, Shakespeare is relying on the exaggerated, the unbelievable, the aberrant--what does not happen in ordinary experience. I mentioned before the "frame" of this play, in which Christopher Sly (against all real probability) is persuaded that he is other than he is: this announces that the implausible will be a feature of the play. Even if we discount this argument based on expectations related to genre, Katherina’s transformation is questionable authority for the appellant’ s contention that "change over time is an integral part of character": if she has not really changed, but is only play-acting to serve her own ends, she is simply the politic shrew she always was; or, if she has changed, that is because Petruchio has accurately read her character and knows how to manipulate her--in other words, he has correctly predicted what her future conduct will be, in response to stimuli he contrives.

In short, the appellant has failed to persuade me that, in the law of Shakespeare, past character is simply not reliably predictive of subsequent conduct. There is too much slippage between "identity" and "character" for us to say that the one is so predictive, while the other is not. Instances of apparent transformations of character are more complex than the appellant’s arguments suggest they are: they are not mere "changes."

I am not unmindful of the difficulty that the foregoing comments entail: if the appellant’s position is that past conduct cannot be relied as evidence because character is unstable, I seem to be arguing that not only character, but what the appellant calls "identity" is just as unstable or elusive: when Antony insists "I am Antony still" (III.xiii.92-3), what can this possibly mean? So, what I have said might be taken as identifying in the law of Shakespeare of a more radical and far-reaching critique of any invocation of what a person in any sense is as evidence of how that person will act. But the law of Shakespeare is full of instances which reinforce the notion that what a person is, perhaps what the person "really" is, or even what we can know about a person, tells us very much about how that person will behave, or, when the question arises, how the person will behave. There is an authenticity about persons, and that authenticity is accessible to the perspicacious observer. This brings us to the second issue, the possibility of accurate interpretation of character.

2. The Problem of Interpreting Character Evidence

The appellant argues that Othello and The Winter’s Tale "describe the limits of our completely knowing others," suggesting that these plays tell us that our assessments of others’ character can at best be doubtful. It is possible that the standard asserted is in any event too high: "our completely knowing others"; it is by no means clear that the law of Shakespeare requires certainty, as opposed to certitude or even likelihood, in judgment. Perhaps all that is required is relative assurance with respect to the particular matter--not complete or exhaustive knowledge. Judgment is pervasive in Shakespeare; it is not portrayed as impossible because its grounds may not be absolute. But, apart from that, the law of Shakespeare distinguishes authentic judgment from that which is flawed, and indeed indicates quite tenable pre-requisites for the former.

In Sonnet 121, the speaker draws a distinction between "others’ false adulterate eyes" (line 5) and what appears to be his "identity": "I am that I am" (line 9). This appears to suggest something like the appellant’s dichotomy between "character" and "identity"--unreliable perceptions of a person as opposed to what the person really is. But the dichotomy is again misleading. Indeed, the fact that some observers have "false adulterate eyes" implies its opposite: that there may be observers whose vision is true. So, in Sonnet 148, while the speaker complains that the eyes which Love has put in his head "have no correspondence with true sight" (lines 1-2), he does acknowledge something he calls "true sight," and does speak of "eyes well seeing" (line 14). Moreover, as we have seen, a person him or herself may have "false adulterate eyes" in self-perception. So the matter of seeing truly or falsely is not straightforward.

In pointing to Othello and Leontes as indicative of the fragility of assessments of character, the appellant relies excessively on interpreters whose eyesight is adulterated. But, as Shakepeare also says, such persons, "they that level/At my abuses," "reckon up their own" (Sonnet 121, lines 9-10). Their judgments tell us more about themselves than about the persons whose characters they purport to know.

So Othello, of whom it might justly be said that "Sin of self-love possesseth all [his] eye" (Sonnet 62, line 1) does not stand for the proposition that accurate judgment of another is impossible, but for the proposition that an ego-involved and ego-threatened observer will likely judge awry. In the play, there are only two characters who take seriously Brabantio’s claim that Desdemona is deceitful: Brabantio himself, and later, at Iago’s suggestion, Othello. How sound Brabantio’s judgment is is clear from his accusations that Othello must have "wrought upon Desdemona" "with some mixtures pow’rful o’er the blood" (I.iii.104-06). Against this outraged and biased assessment must be juxtaposed the Duke’s response: "To vouch this is no proof,/Without more wider and more [overt] test" (I.iii.106-07). That the assessment of a prejudiced observer is wrong does not mean that judgment must be abandoned: a wider and more open inquiry, before a dispassionate tribunal, is appropriate. At least two things are shown to be wrong about Othello’s interpretative strategy: first, the earlier "conviction" is based on Brabantio’s own partial and self-defensive assessment; second, Othello’s predispositions, fueled by Iago’s malignant suggestions, distort his apprehensions.

Similarly, Leontes is alone in his perverse interpretation of Hermione’s character, and, as Camillo tells him, his is a "diseas’d opinion." (I.ii.297). He is "in rebellion with himself" (I.ii.355). Again, his characterization of Hermione tells us more about his character--or about a pathological disruption in it--than it does about hers. The extravagant way in which he describes Hermione’s "sin"--much like Othello’s discourse about Desdemona--is symptomatic of his loss of judgment. That persons in aberrant psychological states misjudge the very persons to whom those aberrant states relate is no evidence that right judgment is untenable.

The characters to whom we must turn to understand Shakespeare’s take on our ability to make accurate judgments are those who remain balanced and/or disinterested. Thus, as I have already noted, the Duke in Othello recognizes that Brabantio’s account is biased and incomplete: he observes that a judgment can be made only after more complete information--including Othello’ s and Desdemona’s own accounts of themselves--is available. This suggests that a balanced and nuanced assessment is possible--even necessary. And, in The Winter’s Tale, it is to the Camillos, the Paulinas, the Antigonuses ("every dram of woman’s flesh is false,/If she be"--II.i.138-39)--and just about everybody else at Leontes’ court that we must look as exemplars of more accurate judgment. Hermione herself, who appears to be a credible witness in this respect, appeals to Leontes’ courtiers that they "With thoughts so qualified as your charities/Shall best instruct you, measure me... (II.i.112-14). The word "measure" here is heavy with connotation: it means "judge," but carries with it as well the notion of accuracy or precision of judgment, as well as "measured"--moderate or temperate--judgment.

Even, or perhaps especially, Iago demonstrates that accurate assessment of character is possible to the astute observer. To be sure, he employs his insights to vile and vindictive ends, but he repeatedly reads his dupes and victims--Othello, Desdemona, Cassio, Roderigo--correctly, and predicts, on the basis of those readings, what their future conduct will be. Indeed, counsel for the appellant make this very point when they observe that Iago’s success in manipulating Othello is partly based on his ability to access Othello’s latent misogyny and xenophobia.

The appellant argues that a past conviction is a particularly dangerous kind of evidence of character because it serves as a "socially-sanctioned stated declaration against the convicted" person. In this regard, they cite Leontes’ concern to validate his view of Hermione by clothing them in the legitimacy of judicial proceedings. Indeed, he does. But he perverts those proceedings by closing his mind to the evidence; everyone can see that they are not genuinely judicial. Again, that one person’s psychopathology distorts the judicial process does not invalidate the process. The process, properly applied, is at least some guarantee that the issues will be fully-aired and that what happens will be subject to public scrutiny. So, far from a conclusion based on the judicial process being particularly problematic as evidence of character, it may be the best evidence. Certainly, alternatives such as "rumor"--upon whose tongues "continual slanders ride" (2 Henry IV, "Induction," line 6) or the perhaps biased or incomplete observations of individual observers can be no better. And, if Leontes is a bad judge, Shakespeare presents examples of those who are good: the Duke in Othello, who as we have seen, insists on "more wider and more overt test"; the Chief Justice in 2 Henry IV, who cannot be "thrust...from a level consideration" by Falstaff’s "confident brow" and "throng of words" (II.i.111-14); the Duke in Measure for Measure. Saying that a judicial conviction is "tested" evidence of character does not, of course, mean that any evidence of that kind should be admitted, but in the law of Shakespeare such a conviction is quite reliable evidence that the criminal act was committed. And, more generally, Shakespeare’s portrayal of these positive judicial outcomes indicates that courts are able to arrive at just conclusions on the basis of discriminating assessment of the materials before them.

The appellant further submits that the understanding of key "circumstantial evidence"--here, the stone paperweight with traces of King’s hair, skin, and blood--was probably understood in terms of the "character narrative" supplied by the evidence of Laird’s previous conviction. Undoubtedly, we do make sense of "evidence"--probably even direct evidence such as eyewitness evidence--in terms of social or personal narratives that give shape and meaning to our experience. But that is the purpose of the trial: to present competing narrative contexts for evidence, and to test these contexts. The trial involves the play of meanings around the evidence. Thus, the court in the instant case did hear a competing narrative--that relating to a possible alternative suspect. This, incidentally, involved presentation of evidence of that suspect’ s character based on previous acts. It is true that, in Othello, different characters attribute different significance to the handkerchief. But to say that Othello, for example, because of his prejudice (however induced) against Desdemona mistakenly read the handkerchief as "ocular proof" of her infidelity does not support the conclusion that competing character narratives that offer "all" possible explanations of a piece of evidence should be withheld from a disinterested tribunal. Indeed, part of the problem in Othello is that the possible meanings of the handkerchief, and how they have been arrived at, are not given an open and public hearing. The necessary conversation never occurs.

3. "Faith" and "Mercy"

Largely on the basis of the supposed opacity of identity and the resistance of character to accurate assessment, the appellant invokes the quasi-theological notions of "faith" and "mercy" to support the exclusion of evidence of Laird’s previous conviction. Since I have already examined the premises for resort to these notions, and concluded that "doubt" respecting character is not so radical (or no more radical than doubt about identity) as the appellant contends, perhaps it is not necessary to consider what is said to follow from those premises. Nevertheless, some observations are in order.

"No trial,’ the appellant contends, "should proceed except upon the foundation of faith." This is a rhetorically compelling position: who would repudiate faith? But it requires scrutiny.

For one thing, "faith" is polysemous. It can mean "suspension of disbelief"--as when Paulina appeals to her audience to "awake" their faith; it can mean loyalty or fidelity--as when the appellant refers to Hermione’s "assertions of her faith"; it can mean irrational emotional conviction--as when Camillo says that the foundation of Leontes’ folly is "pil’d upon his faith" (I.ii.430). This is not an exhaustive list. Apart from having various meanings, "faith" may have positive or negative connotations, as the last example shows: "faith" may be the dynamic of disastrous prejudice.

Even in Paulina’s speech, "faith" is multivalent. At one level, she is staging a deception: faith is appealed to as a kind of false perception. Hermione is not really a statue coming to life; she is already (or still) alive. At another level, "faith" does make reality correspond with appearance: the statue that appears to be Hermione really is Hermione. A plausible inference from this is that, for the perception corrected by an appropriate psychological disposition, things actually are what they seem to be. In other words, to recur to issue one, we perhaps are capable of seeing the reality of things. Character and identity may in fact be congruent for the properly discerning observer.

The appellant argues that "we must proceed from a position of faith in the accused." But, in terms of the foregoing, this is problematic: Othello proceeded on the basis of a kind of faith in Desdemona, just as Leontes proceeded on the basis of a kind of faith in Hermione. But these were misguided faiths. So the faith upon which we must rely must be an instructed or corrected faith--perhaps a faith corrected by experience, if not by something deeper. Polixenes reminds us of "the imposition…Hereditary ours" (I.ii.73-74) in the context of an exchange of rather frivolous banter about "innocence" that just anticipates the manifestation of Leontes’ corrupted faith. The law of Shakespeare does not propound faith in the sense of naiveté as an adequate response to the human condition.

Perhaps more prosaically, the appellant suggests that "the Court should have faith…in itself." Precisely. And an aspect of that faith surely is cautious belief in its own powers of discernment. That is what judgment entails. So, when the appellant says that allowing evidence of Laird’s prior conviction "disables the possibility" of believing "that others can surprise us with difference," he again goes too far. The prior conviction is not conclusive; it does not foreclose the possibility of our being surprised by difference. We appreciate it in the context of our awareness that people can act inconsistently--indeed, in the context here of evidence that Laird has been, in some respects, a model citizen. The presumption of innocence does not predicate prior conviction of innocence and a corresponding exclusion of countervailing evidence.

Under the rubric of "faith," the appellant includes an argument entitled "The inability of proving subjective states." The connection with "faith" is not entirely clear. In the case of both Desdemona and Hermione, their husband’s concern is primarily with the actus reus, not with the mens rea. They accuse their wives of committing acts of adultery; that is what is at issue for them. Theirs are not cases, like that of Mariana in Measure for Measure of the guilt or innocence of an act undoubtedly performed.

Thus, when the appellant argues that the "admission of prior convictions forces the accused to demonstrate an unprovable subjective state," he once again overstates the position. Similarly, suggesting that admitting the evidence of the prior conviction involves "presuming that individuals will only act as they have before" (my emphasis) states the position way too high. The "faith" of the court is not so absolute. In the law of Shakespeare what a person has done is indicative, albeit not determinative, of what that person might have done again. Just as making it determinative would involve too strong a faith, so would excluding it altogether.

The other theological virtue that the appellant invokes is mercy. In some ways, their argument on this point is the most telling of their submissions, but in the end it does not carry the day.

There is no doubt that "mercy" resonates powerfully in Shakespeare, and nowhere moreso than in Portia’s memorable (and much-memorized) speech in The Merchant of Venice. Two qualifications must be attached to the apparent generality of her observations there, however. First, Shylock has the law--or "justice"--on his side. Since this is the case, Portia must appeal to something outside the law: "Then [because Antonio has confessed the bond] must the Jew be merciful" (IV.i.178). Second--which is clear--from the same words--the person who can be merciful is the person wronged in the legal sense, Shylock. The Duke, for example, feels unable to exercise mercy in derogation from the obligation that Shylock is owed. Vicarious forgiveness may be problematic, even in a criminal case like Laird’s.

Nevertheless, Portia does generalize about mercy, saying that earthly magistry is most God-like "when mercy seasons justice." So we must inquire further into its parameters.

The appellant argues, in effect, that he has paid for his previous transgression by his prior conviction and punishment, and that, as a matter of mercy in the Shakespearean sense, this previous conviction should no longer tell against him.

There is no question that Laird has made legal reparation for his earlier crime by virtue of the punishment he has suffered. It is not clear, however, that he has made moral reparation, or, in other words, has undergone a renovation of character (or "identity"). The appellant points to the case of Prince Hal in the Henry IV as an example of "forgiveness" of prior opprobrious conduct. But Hal’s moral reparation appears in his later conduct: his actions on the battlefield balance or supervene his prior conduct, leading to his father’s forgiveness. Similarly, Leontes, after a long penitence, experiences a moral regeneration, which apparently justifies what the appellant characterizes as "divine forgiveness."

It is true that there is evidence of Laird’s latter-day improvement of character: his charitable work and his devotion to his family. Arguably, such evidence could be the basis of his being forgiven the moral failings of his past life. But the two are reciprocal: it would be inappropriate to admit evidence of moral merit--the basis of forgiveness--without also admitting evidence of that for which it is the grounds of forgiveness. One could argue that this is a reason for excluding all evidence of character, but the law of Shakespeare favours comprehensiveness, not selectiveness, of information.

Moreover, evidence of the prior conviction is not adduced to add to the punishment for the previous conduct. Rather it is adduced to add to the information that the court is apprised of relative to the conduct charged. It is, in short, not punitive but probative. It is a fact among other facts from which inferences about what has happened may be drawn. Forgiveness is not necessarily forgetfulness. Mercy does not require us to close our eyes to facts that may illuminate judgment, and calling to mind those facts does not necessarily entail condemnation for them again. I cannot call to mind an instance in the Shakespeare corpus of a creditable character saying, in effect, "I wish to be merciful and therefore I do not want to know."

On the whole, then, I must accept the respondent’s submission that the law of Shakespeare favours inclusion, rather than exclusion. Indeed, the law of Shakespeare is characterized by what the neoclassical age might have described as indiscriminate inclusiveness, or, to borrow the epithet attached to Cleopatra, "infinite variety." It is doubtful that Shakespeare would have entertained such a discontinuity between character and conduct as the exclusionary rule contended for by the appellant implies. And, in the law of Shakespeare, the best--albeit not absolute--guarantee of good judgment is a discerning and dispassionate tribunal, from which as little is hidden as may be, and which has access to competing narratives. What Shakespeare offers to our judgment is a rich texture of character and narrative--and much else. It is difficult to imagine his works propounding to us a reductive principle.