Character Evidence

Question 1

For what purposes may character evidence be offered as substantive evidence (meaning, to prove a fact at issue in the case)?

Answer 1

(1) To prove a person’s character in the rare situation where their character is directly in issue in the case (meaning, an essential element of a claim or defense)
(2) To serve as circumstantial evidence of how a person probably acted during the events of the case (conduct in conformity/propensity evidence)
(3) To impeach a witness and attack their credibility by offering evidence of the witness’s bad character for truthfulness

Question 2

True or false: the prosecution in a criminal case may never initiate evidence of the defendant’s bad character to show conduct in conformity.

Answer 2

True. However, if the defendant introduces evidence of their own good character to show their innocence, the prosecution can rebut with evidence of the defendant’s bad character.

Question 3

How may a defendant prove their good character?

Answer 3

A character witness for the defendant (or the defendant themselves) may testify as to the defendant’s good reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant.

Question 4

By which methods may character be proven?

Answer 4

(1) Evidence of the person’s specific acts;
(2) Opinion testimony of a witness who knows the person; and
(3) Testimony as to the person’s general reputation in the community

Question 5

HYPO: (1) Rambo is charged with murder. During its direct case, should the prosecution be allowed to introduce evidence that Rambo had been convicted 3 times for assault, has a bad reputation for violence, and recently stampeded a herd of cattle?

(2) Should the prosecution’s proposed evidence be admitted on the ground that defendant’s violent character is a material element of the crime with which Rambo is charged?

Answer 5

(1) No. This is all evidence of the defendant’s violent character being offered to show the defendant acted consistently with this bad character. The prosecution may not initiate this kind of evidence in a criminal trial.
(2) No. Violent character is not an element of a murder charge.

Question 6

HYPO: During the defense, Rambo calls Trautman to the stand to testify: (a) “I’m familiar with Rambo’s reputation for peacefulness, and it is excellent. (b) I personally know Rambo, and in my opinion he is a peaceful person.” Admissible? For what purpose?

(2) Could Trautman properly testify, “I’ve seen Rambo turn the other cheek when assaulted by bullies; he’s the President of the local Pacifist Club”
(3) Could Trautman properly testify, “Rambo’s reputation for bravery and honesty is excellent”?

Answer 6

(1) Both are admissible. The defense has initiated the character testimony, and it is done following the proper method: Trautman is testifying to Rambo’s reputation and offering his personal opinion regarding Rambo’s peacefulness, which is a pertinent trait in a murder trial since Rambo’s propensity for violence is at issue.
(2) No. Trautman is neither testifying regarding Rambo’s reputation nor offering his personal opinion regarding any of Rambo’s personal traits.
(3) No. Bravery and honesty are not pertinent traits in a murder trial.

Question 7

Once the defendant opens the door by introducing character evidence, what are the prosecution’s options on cross-examination and rebuttal of the defendant’s character witness(es)?

Answer 7

(1) The prosecution can cross-examine the defendant’s character witness regarding the basis of their testimony by asking “Have you heard?” or “Did you know?” questions about specific acts of the defendant that show the defendant’s bad character for the trait in question. The permitted purpose of the cross-examination is to show the character witness’s lack of knowledge, not to prove the defendant’s bad character.
(2) The prosecution can call its own character witnesses to provide reputation or opinion testimony about the defendant’s bad character for the trait in question.

Question 8

HYPO: During the defense in Rambo’s murder trial, Rambo called Trautman to testify to Rambo’s peaceful character.

(1) Could the prosecutor ask Trautman, on cross-examination: (a) “Have you heard that Rambo was arrested last year for assaulting Rocky?” (b) “Did you know that Rambo shot Judge Dredd 3 years ago?”
(2) If Trautman denies having heard or knowing of the arrests or bad acts mentioned by the prosecutor, may the prosecutor prove that they actually occurred?
(3) Could the prosecutor properly ask Trautman, “Have you heard (or did you know) that Rambo cheated on his income taxes last year?”

Answer 8

(1) Yes, both are permitted. The prosecutor is allowed to test the witness’s knowledge about specific misconduct by the defendant that relates to the trait at issue (here, peacefulness).
(2) No. No extrinsic evidence is permitted because it’s too time-consuming, but it is also unnecessary. The point is not to prove the defendant’s bad character, but to show the witness’s lack of knowledge.
(3) No. Rambo’s honesty is not at issue in Trautman’s testimony.

Question 9

HYPO: Rambo is on trial for murder. Assume that the only witness who testified during the defense was Rambo himself, and he testified only to the fact that he did not commit the murder. After the defense rests, the prosecution calls Murdock to testify that Rambo has a reputation for violence. Rambo’s attorney objects on the ground that this is impermissible character evidence. Result?

Answer 9

The objection will be sustained. Rambo has not opened the door regarding his own character in his testimony, so the prosecution may not initiate evidence of his bad character.

Question 10

HYPO: Rambo is on trial for murder. Assume Rambo introduced favorable character testimony from Trautman regarding Rambo’s peacefulness. After the defense rests, the prosecution calls Murdock to testify that he has known Rambo for 20 years, is familiar with Rambo’s reputation for peacefulness in the community, and that such reputation is bad. Rambo’s attorney objects on the ground that this is impermissible character evidence. Result?

Answer 10

The objection will be overruled. The defense has opened the door to evidence regarding Rambo’s bad character by introducing its own character witness regarding Rambo’s good character.

Question 11

When and how may a defendant initiate character evidence about a victim in a criminal case?

Answer 11

The defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence. Although a victim’s character usually has no bearing on the defendant’s innocence, it becomes relevant when the defendant claims self-defense and argues the victim was the first aggressor.

The defendant may also offer evidence of a victim’s character for a non-propensity purpose - to prove the defendant’s state of mind at the time of the altercation. If the defendant knew at the time of the altercation that the victim had a violent reputation or had committed violent acts in the past, evidence of a victim’s reputation or acts may be admitted to prove the defendant acted reasonably in responding to the victim’s aggression.

NOTE: This DOES NOT APPLY in sexual assault cases.

Question 12

When and how may the prosecution rebut evidence of a victim’s bad character?

Answer 12

Once the defendant has introduced evidence of a victim’s bad character for a pertinent trait (usually violence), the prosecution may rebut with reputation or opinion evidence of:

(1) The victim’s good character for the same trait, or
(2) The defendant’s bad character for the same trait

Question 13

HYPO: Defendant, Coach Bobby, has been charged with assault for throwing a chair at Tonya. Coach Bobby claims that Tonya started the fight and lunged at him with a knife. To prove that Tonya was the first aggressor, Bobby calls Nancy to testify:

(1) That she knows Tonya and that, in her opinion, Tonya is a very violent woman. Result?
(2) That she (Nancy) had been the victim of a knife attack by Tonya a few years ago. Result?
(3) What if Bobby offers evidence that, at the time of the altercation with Tonya, he was aware of her prior knife attack on Nancy?

Answer 13

(1) Admissible. Bobby may introduce evidence of Tonya’s pertinent bad character trait (propensity for violence) because he is essentially arguing self-defense, which makes Tonya’s character an issue. Nancy’s testimony is proper because it is her personal opinion.
(2) Inadmissible. While the same premise as in (1) applies, Nancy’s testimony is neither reputation nor opinion testimony, and thus impermissible.
(3) Admissible. A defendant may offer evidence of a victim’s character for a non-propensity purpose - to prove the defendant’s state of mind at the time of the altercation. If the defendant knew at the time of the altercation that the victim had a violent reputation or had committed violent acts in the past, evidence of a victim’s reputation or acts may be admitted to prove the defendant acted reasonably in responding to the victim’s aggression. Here, Bobby is introducing evidence of Tonya’s past violent acts to show he acted reasonably in the circumstances, so it is admissible.

Question 14

Under what circumstances may the prosecution initiate evidence of a victim’s good character for peacefulness?

Answer 14

Only in a homicide case in which the defendant pleads self-defense. In such a homicide case, evidence of any kind (not just character evidence) that the victim was the first aggressor (for example, eyewitness testimony that the victim struck first) 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 has introduced character evidence of the victim’s generally violent propensity.

Question 15

HYPO: (1) Diane is charged with assaulting Vicky during a tavern brawl. Diane alleges self-defense and introduces a bartender’s testimony that Vicky attacked Diane first. The prosecution wants to introduce testimony that Vicky has a reputation for peacefulness. Admissible?

(2) Assume instead that Vicky died as a result of her injuries and this is a manslaughter prosecution. Following the bartender’s testimony that Vicky attacked Diane first, can the prosecution introduce testimony that Vicki has a reputation for peacefulness.

Answer 15

(1) No. The eyewitness testimony is not character evidence. It is not alleging that Vicky had a violent character, so it does not open the door to prosecution rebuttal with evidence of the victim’s good character for peacefulness.
(2) Yes. Though everything in (1) is still true, this is now a homicide case, which falls under the exception.

Question 16

Explain the admissibility of evidence of a victim’s character in sexual assault cases and any exceptions to the general rule.

Answer 16

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

Exception 1: In a criminal case, specific instances of a victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. Also, 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.

Exception 2: In a civil case, 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 unfair prejudice to any party. (NOTE that this is a special balancing test that is the reverse of Rule 403 and favors excluding evidence.) Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim.

Question 17

Explain the admissibility of character evidence in civil cases.

Answer 17

Character evidence is generally inadmissible to prove conduct in conformity, meaning that it cannot be offered to prove how a person probably acted during the events of the current case. This is true regardless of which party seeks to offer the evidence.

However, it may be admissible when character is directly in issue - i.e., when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense. This is rare and is generally limited to:

(1) Defamation cases where truth is a defense (plaintiff’s character is at issue);
(2) Negligent hiring or entrustment cases (hired/entrusted person’s character is at issue); and
(3) Child custody cases (parents’ character is at issue)

When character is directly in issue, all forms of character evidence (reputation, opinion, and specific acts) are admissible.

Question 18

HYPO: A sues B for automobile negligence.

(1) During the plaintiff’s case-in-chief, A seeks to offer evidence of B’s reputation for careless driving. Admissible?
(2) During the defense, B calls Witness to testify that, in her opinion, B is a prudent and careful driver. Admissible?

Answer 18

No to both. This is a civil case, and character evidence is not allowed in civil cases to prove conduct in conformity.

Question 19

HYPO: Victim’s estate sues Husband for wrongful death damages, alleging that Husband intentionally killed victim. During the defense, may Husband properly introduce evidence of his peaceful character?

Answer 19

No. Even though it involves an allegation of a homicide, this is a civil case where character evidence is generally inadmissible to prove conduct in conformity.

Question 20

HYPO: Victim’s estate sues Husband for wrongful death damages, alleging that Husband intentionally killed victim. In the wrongful death action against Husband, he defends on the ground of self-defense. May Husband properly introduce evidence of Victim’s violent character to prove that she was the first aggressor.

Answer 20

No. Even though it involves an allegation of a homicide where the defendant is claiming self-defense, this is a civil case where character evidence is generally inadmissible to prove conduct in conformity.

Question 21

May evidence of a person’s misconduct be admitted for some purpose other than character? Explain.

Answer 21

Yes. 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 the crime charged (or the alleged act in civil cases). In other words, if a defendant’s other misconduct shows something specific about the charged crime - something more than just bad character - evidence of that misconduct may be admissible as bearing on guilt (or liability in tort actions like fraud and assault).

Question 22

For what non-character purposes may evidence of a person’s other crimes, wrongs, or acts be admitted?

Answer 22

Non-character purposes for this kind of evidence may include:

(1) Motive - for example, burning a building to hide embezzlement
(2) Intent - to show guilty knowledge or lack of good faith
(3) Absence of mistake or accident
(4) Identity - for example, “signature” crimes/modus operandi
(5) Common plan or scheme - usually, committing one crime to prepare for another

Question 23

HYPO: Defendant is charged with the murder of Officer Garcia. The prosecution seeks to prove that Defendant was convicted and imprisoned 5 years ago for narcotics sales in the aftermath of an investigation and arrest made by Officer Garcia. Defendant objects on the ground of impermissible character evidence. How should the judge rule?

Answer 23

The judge should overrule the objection. This evidence is offered to show Defendant’s motive to kill Officer Garcia.

Question 24

HYPO: Defendant is charged with possession of narcotics with the intent to sell. He defends on the ground that he was merely a possessor and user - not a seller - of the drugs. The prosecution seeks to prove that Defendant sold drugs a year ago in the vicinity of the arrest in the current case. Admissible?

Answer 24

Yes. It’s admissible to show intent. Defendant’s state of mind is at issue because he is disputing his intent to sell. The recent drug sales under similar circumstances allow the jury to infer intent to do the same thing here.

Question 25

HYPO: Lizzie Borden is accused of intentionally killing her mother with an axe. Defense: accident. Prosecution seeks to show that Lizzie threw a knife at her mother during a family quarrel one week before the mother’s demise. Is the evidence:

(1) Admissible because it show’s Lizzie’s propensity for violence?
(2) Admissible because it shows that the axe incident was not an accident?

Answer 25

(1) No. The prosecution is attempting to introduce evidence of Lizzie’s bad character for violence, which would require that the defense had previously offered evidence of Lizzie’s good character. There is nothing in the facts to indicate this has occurred.
(2) Yes. The evidence shows the absence of mistake or accident in Lizzie’s mother’s killing because there was a previous and recent violent interaction between between them.

Question 26

HYPO: D is charged with the armed robber of a Wal-Mart in Austin early in the afternoon of July 1. Defense: mistaken identity. Prosecution seeks to introduce evidence that around noon on July 1, D robbed a Penney’s and a Sears in Austin, in the same vicinity as the Wal-Mart. Admissible?

Answer 26

Yes. It is admissible to show identify. The closeness in time and location of the other robberies tends to identify the Defendant as the perpetrator. At minimum, it shows opportunity for Defendant to have committed the crime at issue.

Question 27

HYPO: Defendant is prosecuted for robbing the First National Bank. Defense: alibi. Prosecution introduces evidence that the robber wore a red ski mask, carried a .38 caliber gun and used a uniquely worded stick-up note. Prosecution then seeks to prove that Defendant used the same modus operandi when robbing the First National Bank. Admissible?

Answer 27

Yes. This is admissible to show identity. This evidence shows that the Defendant had a “signature” way of committing his crimes.

Question 28

HYPO: Defendant is charged with robbing the First National Bank. The prosecution seeks to prove that 2 days before the robbery, the Defendant stole a white Acura from a neighbor in the same town. The robber of the First National Bank used a white Acura for the “getaway.” Admissible?

Answer 28

Yes. Here, the evidence is being used to show a common plan or scheme - that Defendant stole the white Acura in preparation to rob the bank and use the Acura as the getaway vehicle.

Question 29

What are the requirements for admissibility of prior misconduct (crimes, wrongs, or acts)?

Answer 29

The misconduct may be proved by any evidence, such as witness testimony, the defendant’s criminal conviction, etc. There must be sufficient evidence to support a jury finding that the defendant committed the other misconduct (meaning, a reasonable juror could come to this conclusion). Additionally, evidence of the misconduct is subject to the usual Rule 403 standard (probative value must not be substantially outweighed by danger of unfair prejudice, etc.).

Question 30

What are the notice requirements for both civil and criminal cases for introduction of prior misconduct evidence (crimes, wrongs, or acts)?

Answer 30

Civil cases: none.

Criminal cases: the prosecutor must provide reasonable notice of any evidence of this type that the prosecutor intends to offer at trial. Such notice usually must be in writing and provided in advance of trial (though the court may excuse lack of pretrial notice for good cause). The notice must articulate the non-propensity purpose for which the evidence will be offered and the reasoning that supports the purpose.

Question 31

True or false: MIMIC evidence is admissible even if the defendant does not contest the non-character issue (e.g., identity or intent).

Answer 31

False. MIMIC evidence is admissible only if the defendant is actually contesting the non-character issue. Also, if a MIMIC category is satisfied, the prosecution may use the evidence of misconduct as part of its case-in-chief. In other words, because MIMIC evidence is being offered for a non-propensity purpose, it is admissible even if the defendant does not “open the door” to character evidence.

Question 32

Explain the rule regarding admissibility of a defendant’s similar misconduct in sex-crime cases.

Answer 32

Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in both criminal and civil cases 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 before trial (or later with good cause).

Such evidence is relevant for any purpose, including the defendant’s propensity to commit sex crimes. This is the ONE situation where evidence of a defendant’s specific acts is admissible to show their propensity to commit the act at issue in the case.