CHARACTER EVIDENCE

1. Generally.
2. Specific Charactare Traits

2. Civil Cases.
3. Criminal Cases.

See also: ARRESTS–§ 2. Impeachment of Character Witnesses; IMPEACHMENT; OTHER ACTS, TRANSACTIONS OR OCCURRENCES; REPUTATION
STATEMENTS AGAINST INTEREST–Statements Injurious to Declarant’s Reputation; TRUTHFULNESS

1. Generally

Character evidence is admissible where a specific character trait is one of the material issues in the case, such as in an action for defamation or negligent entrustment (2). Character evidence is not admissible to show that a party was likely to have acted in conformity therewith on a particular occasion, {footnote}FRE 404(a); King v. Ahrens, 16 F.3d 265 (8th Cir. 1994).{/footnote} except that: (1) the defense in a criminal case may introduce evidence as to pertinent character traits of the defendant or the victim (3(a)); (2) the prosecution in a homicide case may rebut the defendant’s claim that the victim was the first agressor by proving the victim’s character for peacefulness;{footnote}FRE 404(a)(2).{/footnote} and (3) the character of a witness may be impeached (4).

2. Civil Cases in Which Character Is a Material Issue

In most civil cases, the character of the parties is immaterial, and character evidence is inadmissible.{footnote}E.g., Gates v. Rivera, 998 F.2d 697 (9th Cir. 1993) (character evidence normally inadmissible in civil rights cases).{/footnote} For example, neither side in a negligence action may introduce evidence that a party is or is not generally negligent, clumsy or irresponsible to show that it is more or less likely that they were negligent in the situation at issue.{footnote}State v. Lewis, 225 P.2d 428 (Wash. 1950) (in prosecution for manslaughter arising from hunting accident, defendant properly precluded from introducing evidence that he was careful in the handling of firearms on other occasions).
McCormick § 189 (Supp. 1978).
CHECK Cal. § 1104.{/footnote} Many courts allow defendants charged with an intentional tort, however, to introduce evidence of their good character, just as defendants in criminal cases may do.{footnote}Crumpton v. Confederation Life Ins. Co., 672 F.2d 1248, 1253 (5th Cir. 1982); Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986) (suit alleged defendants killed decedent without cause).
Hein v. Holdridge, 81 N.W. 522 (Minn. 1900).{/footnote} Cf. 3, infra.

Where a party’s character is an issue in the case under the applicable substantive law, character evidence is of course admissible. The federal rule and trend among the states is to admit all three forms of character evidence:{footnote}FRE 405(b).
Cal. § 1100.
{/footnote} reputation in the community, a witness’ personal opinion, or specific acts of conduct indicative of character. Evidence of "other bad acts" is often offered purposes other than showing character (e.g., common plan or scheme). See OTHER ACTS, TRANSACTIONS AND OCCURRENCES.

Because a witness’ opinion as to the character of a party is considered the least reliable of the three forms of character evidence, most states traditionally excluded opinion testimony in this context. The Federal Rules of Evidence provide that character may be proved by "specific instances of conduct" only on cross-examination or where the "character or a trait of character is an essential element of a charge, claim, or defense".{footnote}FRE 405
{/footnote}

§ 3. Criminal Cases

3(a). Offered by the Defense

3(a)(1). The Defendant’s Character

Whether or not the defendant takes the stand, he may introduce evidence of his good character for the purpose of showing he would be unlikely to commit a particular crime.{footnote}Michelson v. United States, 335 U.S. 469, 476 (1948); United States v. Pujana‑Mena, 949 F.2d 24 (2d Cir. 1991); Government of Virgin Islands v. Grant, 775 F.2d 508 (3d Cir. 1985); United States v. Diaz, 961 F.2d 1417 (9th Cir. 1992) (error to exclude evidence of defendant’s law‑abidingness).
2 D. Louisell and C. B. Mueller, Federal Evidence § 136 (1985):

The reason why the accused, but not the prosecution, may be the first to introduce evidence of the accused’s character as bearing upon his actions, is easily stated: character evidence is considered circumstantially relevant to prove conduct, and the prejudice and procedural unfairness which the prosecution would cause if it could open this subject are absent where the accused seeks to establish his own good character traits.{/footnote} This is sometimes referred to as the “mercy rule.” It is codified in FRE 404(a)(1):

(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same[.]{footnote}FRE 404 (emphasis supplied).{/footnote}

There are restrictionson the type of evidence which may be introduced. Specific acts of good conduct are inadmissible,{footnote}U.S. v. Solomon, 686 F.2d 863, 874 (5th Cir. 1982) (no abuse of discretion where court precluded criminal defendant’s attorney from asking him about his having a family and his service in military on direct; held improper character evidence because in the form of "specific instances of conduct"); United States v. Russell, 703 F.2d 1243 (11th Cir. 1983).
State v. Speaks, 691 A.2d 547 (R.I. 1997) (evidence of a specific past incident inadmissible to show that defendant was a nurturing father who would not intentionally hurt his child); 9 ALR 606.{/footnote} and in many states, so is direct opinion testimony,{footnote}Ala. R. Evid. 404(a); 405 (opinion evidence inadmissible); People v. Van Gaasbeck, 189 N.Y. 408 (1907).{/footnote} leaving only testimony as to the defendant’s reputation in the community admissible. The trend, and the federal rule, is to allow opinion as well as reputation evidence.{footnote}FRE 405(a).
Cal. § 1102.
Contra Ala. R. Evid. 404(a); 405 (opinion evidence inadmissible).{/footnote}

The evidence must be directed to a “pertinent” character trait (e.g., truthfulness in a fraud case).{footnote}FRE 404(a)(1); Michelson v. United States, 335 U.S. 469 (1948) (character witnesses could testify to defendant’s character for honesty in bribery case); United States v. Santana‑Camacho, 931 F.2d 966 (1st Cir. 1991) (evidence that defendant was good family man inadmissible in prosecution for transportation of illegal aliens); United States v. Nazzaro, 889 F.2d 1158 (1st Cir. 1989) (rJsumJ and commendations of defendant inadmissible where bravery and community spirit irrelevant to charges); United States v. Paccione, 949 F.2d 1183 (2d Cir. 1991) (evidence that accused was good father inadmissible in mail fraud prosecution); United States v. Staggs, 553 F.2d 1073 (7th Cir. 1977); U.S. v. Washington, 106 F.3d 983 (C.A. D.C. 1997) (defendant police officer’s prior commendations not pertinent to crimes of corruption); United States v. Hurst, 29 M.J. 477 (CMA 1990) (error to exclude officer effectiveness reports which evidenced defendant’s good military character where defendant’s character as a military officer at issue in case).
_____ Altamirano, 569 P.2d 233 (Ariz. 19__); State v. McGraw, 528 A.2d 821, 824-25 (Conn. 1987) (in prosecution for burglary and sexual assault, defendant improperly injected issue of his reputation honesty through character witness; prosecution entitled to rebut with otherwise impermissible cross-examination as to arrests for forgery and illegal use of credit cards); Howland, 138 P.2d 424 (Kan. 19__); _____ Hortman, 299 N.W.2d 187 (Neb. 19__); State v. Oliviera, 534 A.2d 867, 869 (R.I. 1987) (defendant’s military record not pertinent to charges of sexual assault and child molestation).
CHECK United States v. Jackson, 588 F.2d 1046 (5th Cir. 1979) (in prosecution for possession and distribution of heroin, evidence of defendant’s reputation for truth and veracity held properly excluded).
CHECK United State v. Cylkovski, 556 F.2d 799 (6th Cir. 1977)(allowing evidence of general good character).{/footnote} In this context, “pertinent” simply means “relevant.”{footnote}United States v. Santana-Camacho, 931 F.2d 966, 968 (1st Cir. 1991); United States v. Roberts, 887 F.2d 534, 536 (5th Cir. 1989); United States v. Staggs, 553 F.2d 1073, 1075 (7th Cir. 1977).
State v. Collins, 478 S.E.2d 191, 194 (N.C. 1996).
22 Wright & Graham, Federal Practice And Procedure: Evidence § 5236, at 383 (1978).
But see State v. Oliviera, 534 A.2d 867, 869 (R.I. 1987) ("pertinent" is not necessarily synonymous with "relevant"; admissibility depends upon whether evidence would "’logically influence the issue.’").{/footnote} If a defendant is accused of a violent crime, that defendant has the right to introduce evidence of his or her peaceful, non-violent nature.{footnote}Shelton v. State, 699 S.W.2d 728, 734-35 (Ark. 1985); Finnie v. State, 593 S.W.2d 32, 32 (Ark. 1980); State v. Aplaca, 837 P.2d 1298 (Haw. 1992) (admissible to show lack of intent); State v. Doherty, 437 A.2d 876 (Me. 1981); State v. Arnold, 421 A.2d 932, 937-38 (Me. 1980); State v. Donhauser, 435 N.W.2d 186 (Neb. 1989); State v. Eakins, 902 P.2d 1236 (Wash. 1995).{/footnote} Where intent or malice is an element of the offense charged and the defendant denies having the requisite intent, character evidence of law-abidingness is relevant and admissible to support an inference that the defendant lacked the requisite intent.{footnote}United States v. Angelini, 678 F.2d 380 (1st Cir. 1982).
1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 101, at 549 (2d ed. 1994); 1A John H. Wigmore, Evidence § 56, at 1173-74 (1983).{/footnote} If the crime charged does not involve dishonesty, the defendant ordinarily cannot introduce evidence of his character for truthfulness.{footnote}United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir. 1979){/footnote} The mere fact that the defendant testifies does not allow him to introduce evidence of his character for truthfulness,{footnote}State v. Harper, 670 P.2d 296, 300 (Wash. App. 1983){/footnote} even if his testimony is challenged or contradicted by the prosecution.{footnote}United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir. 1979); Homan v. United States, 279 F.2d 767, 772 (8th Cir. 1960); United States v. Danehy, 680 F.2d 1311 (11th Cir.
1982)
People v. Miller, 890 P.2d 84, 91-92 (Colo. 1995); State v. Arnold, 421 A.2d 932, 937 (Me. 1980){/footnote}

3(a)(2). Character of the Victim

The defendant in a criminal case may also introduce evidence of a pertient character trait of the victim. FRE 404 provides:

(a) Character Evidence Generally. 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, except:
***
(2) Character of victim.—Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, . . .{footnote}FRE 404 (emphasis supplied).{/footnote}

In the context of this rule, “pertinent” again means “relevant.”{footnote}State v. Laws, 481 S.E.2d 641 (N.C. 1997). See also § 3(a)(1).{/footnote} It has been stated that the exception codified in Rule 404(a)(2) is restrictively construed.{footnote}State v. Laws, 481 S.E.2d 641 (N.C. 1997).{/footnote}

3(a)(2)(A). Alleged Victim’s Violent Character

A defendant charged with a violent crime may introduce evidence of the victim’s violent character in support of a claim of self-defense, for the purpose of establishing that the victim was the aggressor.{footnote}U.S. v. Keiser, 57 F.3d 847, 854 (9th Cir.), cert. denied, __U.S.___ (1995).
State v. Smith, 608 A.2d 63, 72 (Conn. 1991); State v. Newell, 679 A.2d 1142, 1144 (N.H. 1996); State v. Watson, 338 N.C. 168, 187, 449 S.E.2d 694, 706 (1994), cert. denied, U.S. , 131 L. Ed. 2d 569 (1995).{/footnote} If the defendant was aware of the victim’s character at the time of the attack, the character evidence is also admissible to show that the defendant acted out of a reasonable fear for his safety.{footnote}State v. Smith, 608 A.2d 63, 72 (Conn. 1991); 34 ALR 2d 477 .{/footnote}

The prosecution may rebut with evidence that the victim was non-violent.{footnote}FRE 404(a)(2).
Cal. § 1103.{/footnote}

Most states limit character evidence regarding victims to evidence as to reputation,{footnote}121 ALR 380 .{/footnote} but FRE 405(a) and its state counterparts allow both reputation and opinion testimony.{footnote}Accord State v. Smith, 608 A.2d 63, 72 (Conn. 1991).{/footnote} The federal rules of evidence, and the majority of state courts prohibit the use of specific acts to prove the victim’s violent character,{footnote}FRE 405.
State v. Newell, 679 A.2d 1142, 1144 (N.H. 1996), overruling State v. Lavallee, 400 A.2d 480, 483-84 (N.H. 1979); State v. Dellay, 687 A.2d 435 (R.I. 1996).
See 1A J. Wigmore, Evidence (4th Ed.) §§ 63, 63.1.{/footnote} due to concerns of confusing the jury with collateral matters,{footnote}State v. Johnson, 219 N.W.2d 690, 695 (Iowa 1974).{/footnote} unfair surprise{footnote}Heffington v. State, 41 Tex. Crim. 315, 320, 54 S.W. 755 (1899).{/footnote}; and prejudice to the prosecution.{footnote}Henderson v. State, 234 Ga. 827, 828, 218 S.E.2d 612 (1975).{/footnote} Some courts will admit evidence of specific violent incidents, but only if they resulted in a conviction.{footnote}State v. Smith, 608 A.2d 63, 72 (Conn. 1991).{/footnote} Some courts have permitted evidence of specific acts of violence, unknown to the defendant, to be admitted if they are so connected in time, place and circumstances with the homicide that they are likely to assist the jury in characterizing the victim’s conduct toward the defendant.{footnote}Mendez v. State, 27 Ariz. 82, 87, 229 P. 1032 (1924); State v. Beird, 118 Iowa 474, 479, 92 N.W. 694 (1902); State v. Waldron, 71 W. Va. 1, 5, 75 S.E. 558 (1912).
But see Henderson v. State, 218 S.E.2d 612 (Ga. 1975) (evidence of victim’s drunken, violent conduct toward third party a few hours before incident inadmissible because not directly connected to incident); People v. Perez, 239 N.W.2d 432 (Mich. App. 1976) (evidence of victim’s knife fight with third party one day before incident inadmissible because not directly connected to incident).{/footnote}

On cross-examination of prosecution character witnesses, specific acts of misconduct by the victim may be inquired into.{footnote}FRE 405.{/footnote}

3(a)(3). Expert Testimony

Expert testimony has been held admissible on behalf of a defendant to show that his personality traits are consistent with innocence.{footnote}United States v. Roberts, 887 F.2d 534 (5th Cir. 1989) (expert psychiatric testimony about defendant’s naive and autocratic personality traits is admissible to demonstrate defendant claiming reverse-sting defense did not intend to violate the law); United States v. Newman, 849 F.2d 156 (5th Cir. 1988) (when entrapment defense raised, expert psychiatric testimony admissible to demonstrate that a mental disease, defect, or subnormal intelligence made defendant peculiarly susceptible to inducement); United States v. Staggs, 553 F.2d 1073 (7th Cir. 1977) (psychologist should have been permitted to testify as to defendant’s incapacity for violence).
See also FRE 405 (Advisory Committee’s Note) (psychiatrist should be permitted to opine as to someone’s character based on examination and testing).{/footnote}

3(b). Offered by the Prosecution

3(b)(1). Generally.

The prosecution may not introduce evidence of a defendant’s character to show that he acted in conformity therewith on a particular occasion (i.e., to show propensity to commit the crime charged) unless the defendant first introduces "good character" evidence.{footnote}FRE 404(a); Michelson v. United States, 335 U.S. 469, 476 (1948); United States v. Tran Trong Cuong, 18 F.3d 1132 (4th Cir. 1994) (improper to cross-examine defendanat as to his reputation as source for prescription drugs where defendant had not placed his character in issue); United States v. Vaught, 485 F.2d 320 (4th Cir. 1973) (statements of co‑conspirators suggesting defendants were "bad men" inadmissible); Carson v. Polley, 689 F.2d 562 (5th Cir. 1982) (evaluation reports of accused’s bad temper inadmissible where offered to show conformity therewith).
Cal. § 1101; State v. Hughes, 1997 Ariz. LEXIS 53; People v. Harris, No. 3-90-0673 (Ill. App. 1992); State v. Sharich, 297 Minn. 19, 23, 209 N.W.2d 907, 911 (1973); State v. Dudley, 912 S.W.2d 525, 528 (Mo. App. 1995) inadmissible in prosecution’s case-in-chief).{/footnote} This is so even if the defendant has testified. The prosecution may introduce "other bad act" evidence where it is probative of some issue other than the defendant’s character or as impeachment if the defendant has testified (see OTHER ACTS AND OCCURRENCES §§ 3-5).

3(b)(2). Rebuttal by the Prosecution

Once the accused has introduced favorable character evidence, the defendant’s character is squarely in issue, and the prosecution may introduce its own evidence of bad character.{footnote}FRE 404(a)(1); Michelson v. United States, 335 U.S. 469 (1948).
Cal. § 1102; Trujillo v. State, 880 P.2d 575, 580 (Wyo. 1994).
2 D. Louisell and C. B. Mueller, Federal Evidence § 136 (1985).{/footnote} The rebuttal evidence, however, may not go beyond those character traits as to which the defendant offered evidence.{footnote}United States v. Corey, 566 F.2d 429 (2d Cir. 1977).
Isaacs v. State, 659 N.E.2d 1036, 1041 (Ind. 1995){/footnote}

]

5. Impeachment of Character Witnesses

A character witness may generally be impeached with questions as to specific acts of misconduct by that party. See OTHER ACTS AND OCCURRENCES § 6. Impeachment of Character Witnesses.

Bibliography

Wanda Ellen Wakefield, Annotation, Cross-Examination Of Character Witness For Accused With Reference To Particular Acts Or Crimes-Modern State Rules, 13 A.L.R.4th 796 (19__)

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