1. The character evidence rule follows a pattern common to many relevancy rules. There is a DEFINITION of what constitutes characters evidence, a basic RULE OF INADMISSIBILITY declaring character evidence not admissible for its most obvious purpose, and some EXCEPTIONS for situations in which character evidence is admissible.
2. Definition. Exactly what is character evidence?
a) It is not defined in the text of the FRE.
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-moral characteristics, behavioral tendencies, and patterns of life, which would include things having nothing to do with morality like carefulness, shyness or fondness for cats. While character evidence often concerns a person's moral qualities, it is not limited to moral behavior. Character is a pattern of any kind of behavior, whether it involves an issue of morality or not.
c) The definition is also tricky because you have to distinguish "fixed disposition" from "tendency." There is a difference between fixed behavior that is always the same, and a mere tendency to behave in a certain way. The difference is important. Fixed patterns of behavior are called "habits" and fall under Rule 406, which says habits are admissible. A tendency to behave in certain ways is character, which falls under Rule 404, and is not admissible.
d) The definition includes both the aggregate of a person's qualities (a "good" person) and individual traits such as recklessness or violence.
3. Character is something that is developed over time. It is not a one-time event like a robbery to which there are eyewitnesses. No one sees every instance in which that character trait is put to
the test. Therefore, you cannot ask a witness directly what the defendant's character is. You must instead prove character indirectly. Three types of evidence are used:
a) Reputation (what the witness has heard lots of people say about the defendant's character).
b) Personal opinion based on the witness knowing the defendant over a period of years and seeing some of the instances in which the trait appeared.
c) Specific acts that illustrate the character trait (e.g., several witnesses each testify to one or two instances of the trait so the jury can conclude that the trait exists)
4. Rule of Inadmissibility. Character evidence is presumptively inadmissible because we are supposed to be litigating what happened on one occasion, not what kind of person the defendant is or how
he behaved on other occasions. The actual rule is slightly narrower -- character is not admissible when it is offered to prove that the person behaved consistently with that character on a specific
occasion. In other words, the defendant's tendency to drive aggressively over the speed limit is not admissible to support the claim that he was driving aggressively over the speed limit at the time he
crashed into plaintiff's car.
5. Exceptions. There are 4 exceptions to the rule that character evidence is not admissible. The first is when character is "in issue," i.e., is a material element of the cause of action. There are only seven situations in which character is itself a material issue.
a) In a case for defamation of character
b) Parental fitness in custody cases
c) Negligent hiring of an employee with bad character
d) Whether the decedent was a good provider in a wrongful death case (only in some states)
e) Habitual offender statutes
f) RICO (requires proof of a pattern of racketeering activity)
g) Rebutting an entrapment defense by showing that the defendant had a propensity to commit the crime and was not an "otherwise innocent" person.
6. The second exception is when character evidence is offered to prove something other than the person's tendency to engage in that behavior. For example, the prosecution cannot prove that the
defendant has a history of writing bad checks for the purpose of proving that he is guilty of writing a bad check on August 13. But the prosecution may offer proof of a pattern of bad check writing for
other purposes (usually in rebuttal), for example:
a) If the defendant denies that the handwriting on the check is his, the prosecution can introduce a bunch of previous bad checks written by the defendant to show that the handwriting is the same. The prosecutor could use any set of writings by the defendant as handwriting exemplars. The fact that the prosecutor happens to use bad checks is just a coincidence.
b) If the defendant claims he didn't know there were no funds in the account, the prosecutor could show a pattern of bad check writing, including several that were returned marked "NSF," to show that the defendant in fact knew that the account had no funds in it.
7. Third, Rule 404(a) contains several related exceptions for criminal cases.
a) The defendant can prove his own good character (general or specific trait), and the state may rebut in kind. This is a very broad exception.
b) The defendant may prove pertinent traits of the victim's bad character, and the state may rebut in two ways -- by proving the victim's good character or by proving that the defendant has equally bad character. This is a narrow exception, used mostly in self-defense cases in which character for violence is offered to show who was the primary aggressor.
c) The prosecution may prove the peaceful character of the victim of a homicide to negate the defendant's claim of self-defense.
8. In some states, but not all, these exceptions also apply in civil intentional tort cases based on criminal conduct.
9. Fourth, Rule 404(a)(3) has an exception for the bad character of a witness with respect to truthfulness, offered as impeachment evidence under Rules 607, 608, and 609. We will cover this when we discuss impeachment evidence in general.
10. Just because a character evidence exception is invoked does not make the evidence automatically admissible.
a) Character evidence is always subject to Rule 403 balancing. Relevant character evidence may be excluded for prejudice or confusion of the issues.
b) In general, you may only prove character by reputation or opinion evidence, and not by proving specific acts. The only time you can prove specific acts is if character is directly in issue or on cross-examination of a character witness. (this is a difficult rule to remember)
c) If character is proved by reputation, a foundation is required that the witness has knowledge of the person's reputation within a community.
d) If character is proved by opinion, a foundation is required that the witness has known the person over a long enough period of time to get to know the person's behavioral characteristics in general, and has seen several examples of the specific trait in issue.