b) The definition is tricky, because most people associate character with moral qualities. That is part of the definition, but not the whole.
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6. CHARACTER EVIDENCEA. Introduction1. Rule 404 makes character evidence inadmissible in most circumstances, but admissible underseveral exceptions.2. Definitiona) Character is not defined in Rule 404, so we rely on customary usage. b) The definition is tricky, because most people associate character with moral qualities.That is part of the definition, but not the whole. Character also includes non-moralcharacteristics, behavioral tendencies, and patterns of life, which would include thingshaving nothing to do with morality like carefulness, shyness or fondness for cats. Whilecharacter evidence often concerns a person’s moral qualities, it is not limited to moralbehavior. Character is a pattern of any kind of behavior, whether it involves an issue ofmorality or not.c) The definition is also tricky because you have to distinguish “fixedfl behavior from a”tendency” to behave in certain ways. Fixed patterns of behavior are called habits which fallunder Rule 406 and are admissible. They will be discussed in the next chapter. Characterevidence under rule 404 is evidence of a general tendency to behave in certain ways, whichis not usually admissible.d) The definition includes both the aggregate of a person’s qualities (a “good” person) andindividual traits such as recklessness or violence. e) Character is not the same as reputation. “Character” consists of the individual patterns ofbehavior and characteristics which make up and distinguish one person from another. “Reputation” is the general opinion of people in the community as to a person™s charactertraits, and is therefore evidence of (and a common way to prove) character. Reputation alsomay be independently relevant, as in a defamation case in which a party sues for damage toreputation. f) Character is also different from credibility: The character of a person (how they are likelyto behave) is rarely in issue; the credibility of a witness (how likely they are to be completelytruthful) is always in issue. Evidence that a witness lacks credibility obviously also impugnsthat person’s character, but is independently admissible under the Impeachment Rules — 607,608, 609 and 616 — covered later in the course.
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3. Rule 404 makes character evidence inadmissible for the purpose of proving that on a particularoccasion the person acted in accordance with that trait, unless it falls within the exceptions wewill discuss later. 4. When character evidence is admissible, Rule 405 says that fiit may be proved by testimonyabout the person’s reputation or by testimony in the form of an opinion.fl It may not provedthrough evidence of specific events that illustrate the character trait in action. Yes: Joshua has an excellent reputation in town as an honest used-car seller.Yes: In my opinion, Joshua is an honest used-car sellerNo: Joshua was honest when he sold me a used car. B. Character Evidence in Civil Cases1. General rule. Character evidence is not admissible to prove conduct in civil cases. Forexample, a defendant cannot offer the testimony of friends (or her own testimony) that she isusually a very careful driver as circumstantial evidence she was probably driving carefully and not negligently on the day of an accident. 2. Character in issue. Character evidence is occasionally admissible if a trait of character hasbeen placed in issue by the pleadings. Lawsuits in which character is a material issue areextremely uncommon. One must be careful not to confuse an allegation of particular unsavorybehavior (e.g., acted maliciously on a certain day) with true character (tendency to be maliciouson all days and toward all people). Character is a material issue in the following types of cases:a)Defamation. Character is in issue in a defamation case when the defamatory statementfalsely accuses the plaintiff of having a general flaw, e.g., accusing Hillary Clinton ofbeing a liar. Character is not in issue if the defamatory statement falsely accuses theplaintiff of a specific act, e.g., Hillary lied about Benghazi.b)Negligent entrustment. In an action for negligent entrustment, the plaintiff may provethat the defendant entrusted an automobile to an employee who was known to drivecarelessly. c) Parenting ability. Parents’ characters and patterns of behavior toward their children is inissue in cases involving custody, visitation and termination of parental rights.3. Character of witnesses for truthfulness. All witnesses, including the parties, place theircharacter for truthfulness in issue when they testify. We will get to this when we discussimpeachment.
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C. Character Evidence in Criminal Cases1. General rule. Character evidence is more frequently introduced in criminal cases than in civil. Although the same general presumption against the use of character evidence applies, defendantsmay offer it and prosecutors may respond in kind in several situations specified in Evid. R.404(a)(2).2. Character of the accused. Defendants in criminal cases may offer evidence of their own goodcharacter to negate a charge of criminal conduct. They may offer evidence of their general law-abidingness or may prove good character for specific traits relevant to the conduct for which theyare accused. Once the defendant has offered evidence of good character (but not before), thestate may rebut with evidence of bad character on the same trait. Defendants often raise characterinadvertently, by going beyond denying the crime charged and testifying fiI would never hurtanyone.fl This may open the door to evidence about his character for violence. There is a lot ofjudicial discretion involved on two key issues:! When is the line crossed between witnesses saying bland nice things about a defendantand placing his character in issue, and ! What is the scope of the prosecutor™s rebuttal? Defense attorneys obviously try to present their clients in a good light — well dressed, polite, anda responsible citizen who goes to church and has a job and family. Neighbors may testify that hewas quiet and never caused trouble. The judge must decide at what point the attorney has placedthe defendant™s character in issue, whether it matters if the prosecutor objected, and what kindsof bad character evidence will be admissible in rebuttal. 3. Character of victim. The accused may offer evidence of a pertinent trait of character of thevictim that is material to the crime. After the accused places the victim’s character in issue, theprosecutor may offer rebuttal evidence on that same trait. The state may rebut only as to thevictim’s character, not the defendant’s. Illustration. In an assault/self-defense case, the defense calls witnesses to testify that the victimhad a reputation for violence, carrying guns, and starting fights. The prosecution can rebut withwitnesses who say the victim was a peaceful man, but not that the defendant also had a reputationfor violence, carrying guns and starting fights. In a homicide case in which the accused offers appreciable direct evidence that the victim wasthe first aggressor, the prosecution may in rebuttal prove the victim’s good character forpeacefulness whether or not the accused offers character evidence. 4. Character of rape victim. Most states have a so-called rape shield law, e.g., Evid. R. 412,which restricts evidence of the character and prior behavior of a rape victim. This matter isdiscussed in detail in the readings on sexual character.
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5. Character of witnesses. All witnesses, including the defendant and victim, place theircharacter for truthfulness (whether they tend to be truthful or untruthful) in issue when theytestify. We will get to this when we discuss impeachment.6. Insanity defense. A plea of insanity places a defendant™s entire life in issue, including hischaracter. 7. Entrapment defense. When the defense raises the issue of entrapment, it places hispredisposition to commit the crime in issue. Predisposition may be proved by evidence as to hischaracter.D. Methods of Proving Character1. General reputation. When character is admissible, Rule 405 says it may be proved bytestimony describing the subject’s reputation in the community concerning a trait in issue. Traditionally ficommunityfl has meant the town or neighborhood in which the subject lives orused to live. The modern trend is to expand the concept of community to include the workplace,institutions and other large groups with whom the person regularly associates. A family unit isnot large or diverse enough to be a community. A foundation must be laid to show:a) The witness is familiar with the subject’s reputation within a community.b) The subject is a member of that community. c) The subject has a general reputation among an identifiable group of people who haveadequate basis to form opinions.d) The witness has substantial contact with the community or group.2. Personal opinion. Rule 405 says character also may be proved by testimony in the form of apersonal opinion offered by someone acquainted with the subject. A foundation must be laid thatthe witness has known the subject over a long enough period of time and under sufficientcircumstances that they can form a reasonably reliable opinion as to the trait in issue. a) A husband may give an opinion of his wife™s general character or a specific trait such asloyalty or honesty that would be apparent from daily domestic life, but probably may notgive an opinion about how she would behave at work.b) Captain Kirk may give an opinion of his officers™ bravery, but probably not an opinion ofthe bravery of a junior mess steward who works in the kitchen. The general foundation for an opinion is discussed in the chapter on the opinion rule. 3. Specific instances of conduct. Rule 405 says that character may not be proved by introducingevidence of specific acts that supposedly illustrate a particular trait, unless character is directly inissue. There is one exception — if a defendant claiming self-defense is trying to prove that he orshe had a reasonable and justifiable fear of the victim because of the victim’s violent character,the defendant may offer proof of specific acts of violence of which the defendant was personally
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aware because it tends to prove the defendant™s reasonable belief, not the victim™s conduct.. 4. Expert witnesses. Behavioral traits may not be proved by expert testimony from apsychologist. This is a recurring issue in child sexual abuse cases, where the child™s testimony isbolstered by her therapist, who testifies that the child is not prone to fantasy or exaggeration, isnot susceptible to manipulation by her mother, and has a tendency to be truthful. E. Cross-Examination of Character Witnesses1. Character witnesses who testify to a person™s reputation, or give their personal opinion,concerning a character trait, may be cross-examined about whether they have heard aboutspecific acts that contradict the character trait testified to. If the witness states a personal opinionabout the defendant™s character, the prosecutor can ask the witness if they are personally aware ofthe defendant™s prior convictions for disorderly conduct, assault and/or resisting lawenforcement. If the character witness testifies to reputation, the prosecutor can ask the witnesswhether he or she has heard about the defendant’s prior arrests for crimes of violence whether ornot they ended in convictions — because we are talking about reputation, not fact. However,before the state may raise any specific acts of a defendant on cross-examination, it must disclosethe acts it intends to use if the accused gave pretrial notice of intent to call character witnesses. 2. Character witnesses generally may not be asked hypothetical questions on cross-examination. Thus, questions that begin, “Would your opinion of the defendant’s character change if ” areimproper. United States v. Williams, 738 F.2d 172 (7th Cir. 1984). F. Bolstering1. General rule. An attorney may not bolster the credibility of a witness with evidence of theirgood character for truthfulness and honesty before that witness’s credibility has been attacked. The usual rationale for this rule is that every witness is presumed to speak the truth, so it is awaste of time to accredit a witness unless it is clear that the witness’s credibility is going to be anissue, which we won™t know until the cross-examination. 2. Background evidence permitted. The no-bolstering rule does not prevent an attorney fromeliciting relevant background testimony from a witness, even if that background tends to enhancethe witness™s credibility. General background — job, marriage, children, church, where one wasborn and raised — should always be admissible. The jury is entitled to know who the witness is.In addition, more specific background should be permitted if it has something to do with thecase. For example, a police officer may testify to the number of years on the force, a smallbusiness operator to the length of time in business, a doctor to the number of similar surgeriesperformed., even though this may indirectly bolster the person’s credibility or character. How-ever, this rule should not be extended to allow testimony about unrelated good deeds.
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3. Witnesses in uniform. Police officers and members of the military on active duty may testifyin uniform. Doing so is not considered bolstering the witness’s character. 4. Child victim-witnesses. In trials involving allegations of child sexual abuse, the credibility ofthe child is often crucial because he or she may be the only witness. The defendant who deniesguilt is likely to claim the child is lying, fantasizing, or has been coached by an angry spouse (onestudy found that most accusations of child sexual abuse were made by a spouse during divorceand custody disputes). It is common for prosecutors to try to offer character testimony fromparents, teachers, police investigators, doctors and counselors that in their opinion the child istrustworthy and has no tendency to exaggerate or fantasize. Such bolstering testimony is notgenerally allowed, although state laws vary because of the emotional nature of the issue.
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