Character Evidence

Permissible Uses of Character Evidence

(1) to prove a person’s character in the rare situation where their character is an essential element of a claim or defense; (2) to serve as circumstantial evidence of how a person probably acted in the events of the case (propensity evidence); or (3) bad character for truthfulness offered for impeachment purposes

Methods to Proving Character

Some or all of the following methods may be allowed: (1) evidence of the person’s specific acts; (2) opinion testimony of a witness who knows the person; and (3) testimony as the person’s general reputation in the community

Approaching Character Evidence

Ask: (1) what type of character evidence is being offered; (2) is the case civil or criminal; and (3) does the evidence prove a pertinent character trait

Character Evidence in Civil Cases, Generally

Generally, character evidence is inadmissible in civil cases to prove conduct in conformity, except for civil sexual assault and child molestation cases

Character At Issue in Civil Case

When proof of a person’s character, as a matter of substantive law, is an element of a claim or defense, character evidence is admissible in that regard. On the bar, this is generally limited to: (1) defamation cases where truth is a defense; (2) negligent hiring or entrustment cases; and (3) child custody cases. When character is directly in issue, all forms of character evidence are admissible

Defendant’s Character in a Criminal Case, generally

Generally, the prosecution cannot initiate evidence of the defendant’s bad character to show conduct in conformity. However, the defendant is permitted to “open the door” and introduce evidence of their own good character to show innocence, and the prosecution can respond with other character evidence

Proving Character as a Defendant

Defendant may offer evidence of their own good character to prove their conduct in the case so long as: (1) the evidence concerns a pertinent trait; and (2) the evidence is in the form of reputation or opinion testimony. Examples of specific acts of good conduct is generally not allowed

Prosecution Rebutting Defendant Character Evidence

The prosecution may: (1) call its own character witnesses to provide reputation or opinion testimony; (2) cross-examine the defendant’s character witness by asking if the witness knew/heard of specific acts of the defendant. The questioning is admissible only to impeach the witness by showing their lack of knowledge, not to prove the defendant’s character

Defendant Initiating Victim Character Evidence

Except in sexual assault cases, the defendant may introduce reputation or opinion evidence of a bad character trait of the alleged victim when it is relevant to show the defendant’s innocence. This becomes especially relevant if the defendant is asserting self-defense and asserting that the victim was the initial aggressor

Prosecution Rebuttal of Victim Character evidence

Once the defendant has introduced evidence of the victim’s bad character for a pertinent trait, the prosecution may rebut with opinion or reputation evidence of: (1) the victim’s good character for the same trait; or (2) the defendant’s bad character for the same trait

Prosecution Initiation of Victim Character Evidence

In a homicide case in which the defendant pleads self-defense, evidence of any kind (not just character evidence) that the victim was the first aggressor opens the door to evidence that the victim had a good character for peacefulness. The prosecution can introduce this evidence regardless of whether the defendant introduced character evidence of the victim’s violent propensity

Rape Victim Past Behavior Admissibility

In an civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible.

Rape Victim Character Evidence Criminal Exception

In a criminal case involving alleged sexual misconduct, specific instances of the victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or physical evidence. Specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defense to prove consent

Rape Victim Character Evidence Civil Exception

Evidence of the alleged victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim

General rule: Other Misconduct Inadmissible

Evidence of a person’s other crimes, wrongs, or acts is generally inadmissible if offered solely to prove character for purposes of inferring conduct in conformity

Other mIsconduct Independently Relevant

Evidence of a person’s other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit an act. This may include motive, intent, absence of mistake or accident, identity, or a common plan or scheme

Other Misconduct Requirements for Admissibility

The misconduct may be proved by any evidence. There must be evidence sufficient to support a jury finding that the defendant committed the other misconduct.

Other Misconduct: Prosecutor Notice

In criminal cases, the prosecutor must provide reasonable notice of any evidence of the type that the prosecution intends to offer at trial. Such notice must be in writing and in advance of trial, and must articulate the non-propensity purposes for introducing the evidence and the reasoning that supports the purpose

Defendant’s similar misconduct in sex-crime cases

Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in a criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days or more before trial (unless there is good cause.)