Over 65 years ago, Justice Robert H. Jackson, writing for the U.S. Supreme Court in Michelson v. United States, 335 U.S. 469 (1948), complained about the “helpful but illogical options” available to a defendant attempting to introduce evidence of his good character in a criminal trial: “We concur in the general opinion of courts, textwriters and the profession,” Jackson wrote, “that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other.”
In fact, as Jackson went on to point out, many of the rules on the introduction of character evidence that are still in force throughout the United States, with minor variations by jurisdiction, turn many of our traditional assumptions about the law upside-down.
Normally, whether or not a particular piece of evidence comes in at trial depends on its “relevance.” Relevant evidence is admitted; irrelevant evidence should be kept out. This makes perfect sense when you think about it. You want the finder-of-fact (either the judge in a bench trial or a jury) to consider all of the pertinent facts in order to arrive at the right outcome. And you don’t want to confuse the issues or waste anyone’s time with the inconsequential stuff.
At the same time, the traditional prohibition against the introduction of character evidence — that is, circumstantial evidence pertaining to someone’s personality as an indication as to how that person may have acted on the day in question – is not that it is irrelevant. It is that it might be too relevant and too persuasive, thereby leading the jury to place undue emphasis on this evidence to the exclusion of other evidence to the detriment of the overall fact-determining process.
There are also other anomalous results when character comes into play. Not only is a witness who is called to testify on behalf of the defendant’s reputation good character allowed to provide hearsay testimony (traditionally a big “no-no” in any trial), the witness is in fact precluded from providing anything but hearsay testimony. Finally, the introduction of character evidence is one of the only situations in which the rules of evidence permit conclusions from a witness on a subject in which he is not an expert.
At the same time, whatever problems Jackson may have had with the rules for introducing character evidence, the Supreme Court ultimately declined to change them despite the fact that England and other countries eventually overhauled the practice by statute. “Somehow,” wrote Jackson, “it has proven a workable even if clumsy system when moderated by the discretionary controls in the hands of a wise and strong trial court. To pull out one misshapen stone out of the grotesque structure is more likely to upset its present balance between adverse interests than to establish a rational edifice.”
As a result, the rules on the introduction of character evidence in a criminal trial, with minor variations by jurisdiction, look remarkably similar to the paradoxical and illogical structure Jackson complained about over half a century ago. Character evidence is still inadmissible in most circumstances with only a few carefully circumscribed exceptions. Here is how the system works in D.C.
Character Evidence for a Testifying Witness
The first exception to the inadmissibility of character evidence applies to all witnesses who take the witness stand, including the defendant if he decides to testify. While the rules of evidence vary somewhat depending on the jurisdiction, the truthfulness of any witness can be impeached in D.C. with evidence that the person was convicted of a crime of dishonesty – a crimen falsi — within the past 10 years.
The truthfulness of a witness can also be impeached with evidence that the witness was convicted of a felony within the past 10 years, with such evidence coming in against a defendant in a criminal case only after the court has determined that the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” Finally, witnesses whose character for truthfulness has been called into question may counter with evidence attesting to their truthfulness.
Character Evidence for a Criminal Defendant
The second exception to the inadmissibility of character evidence applies to the character of the defendant in a criminal matter, whether or not the defendant testifies.In this case, it is the defendant who decides whether or not any character evidence will be introduced. Based in large part on the so-called “mercy rule,” which reflects a desire to counteract the imbalance of power faced by an individual who finds himself confronted by the enormous power of the state against him, the exception allows the defendant to introduce a character trait of his own for the purpose of showing that he acted in accordance with that trait on the day in question.
The character trait that is introduced needs to be “pertinent” to the offense with which he is charged. For example, if charged with theft, fraud or some other offense involving dishonesty, the defendant is permitted to introduce evidence of his honest character. Likewise, if he is charged with a violent crime, he can introduce evidence of his peaceful character.
Once the defendant has “opened the door” to this character evidence, the defendant’s character has become fair game, and the prosecution can then respond with evidence of its own to rebut the defendant’s claims of good character.
There are a number of different ways in which the defendant can “open” this door with respect to his own character. While the most obvious way is for the defendant to call to the stand a witness to testify to his good character, the defendant also puts his character into play if he mentions it during his opening statement or while testifying (by claiming, for example, that he is not a drug dealer); elicits information about it during cross-examination of the government’s witnesses; or introduces character evidence for the complainant (see below).
Character Evidence for Complainant/Alleged Victim
It is also up to the defendant to decide whether or not the character of the alleged victim will be brought into play. In claiming self-defense, for example, the defendant can introduce evidence that the victim was widely known in the community to be a violent person. This suggests that it was perhaps the victim who instigated the altercation.
Again, once the defendant has opened the door to this evidence, the government can respond with evidence of its own to suggest the good character of the victim with respect to this particular character trait. Alternatively, it can introduce evidence of the defendant’s bad character with respect to this same trait.
Jurisdictions also vary with respect to the way they define specific character traits that can be brought into evidence. Relevant character traits in D.C. generally fall within one of three categories:
(1) truthfulness and honesty: Although frequently used interchangeably, truthfulness and honesty are two very different character traits. Speaking to accuracy and factuality, truthfulness is most relevant when it comes to credibility on the witness stand. Honesty connotes moral virtue, and might be more relevant when it comes to addressing the elements of a crime, such as theft or fraud.
(2) peacefulness and non-combativeness: Although this is the buzz phrase typically used in D.C., “peacefulness” and “non-combativeness” connote roughly the same thing. Relevant when some type of violence or aggression is suggested (as in an assault case), peacefulness suggests that the person is gentle and tranquil. Non-combativeness is a little bit more specific, suggesting that the person is not prone to violence or aggression.
(3) peace and good order: Again, while this is the buzz phrase used in D.C., the character traits of peace and good order are really used to suggest to the finder-of-fact that the person respects law and order. The implication is that a law-abiding person would not have violated the law on the day in question.
It is again up to the defendant to decide which of these character traits will come into play. The defendant can, for example, introduce evidence with respect to one of the traits without opening the door to the other traits.
Forms of Character Evidence
There are three different ways in which character evidence can be introduced: (1) through evidence of the defendant’s reputation, (2) through evidence of other people’s opinions of the defendant’s character, and (3) through the introduction of evidence on “specific instances of conduct.”
Depending on the jurisdiction, reputation and opinion evidence are generally admissible when first introducing evidence of the defendant’s good character and then for use by the prosecution in rebutting this evidence. The questions normally take the form of: Are you familiar with the defendant’s reputation for a particular character trait and, if so, what is this reputation? And do you have your own opinion of the defendant’s character with respect to this particular trait?
Evidence of specific instances of conduct has more limited admissibility. It can come in, for example, for the purpose of attacking or supporting a testifying witness’ character for truthfulness. It is also admitted to prove the conviction of a testifying witness “if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.”
As for the difference between reputation and opinion evidence, on the one hand, and specific instances of conduct, on the other, a D.C. court has found that a defendant’s “reputation for not using drugs” was not properly admitted as reputation evidence. The court concluded that the statement did not reflect the “abstract qualities” that reflect “an individual’s general character traits,” but rather specific instances of conduct that should not have been admissible under the circumstances.
Other Crimes, Wrongs or Bad Acts
Although evidence of other crimes, wrongs or acts is not admissible to prove the character of a person to show action in conformity therewith unless in accordance with one of the exceptions described above, a party may seek to admit such “bad act” evidence if it satisfies what we learned in law school as the “MIMIC” rule. Specifically, such acts are admissible to prove the defendant’s:
- — Motive or opportunity to commit the charged crime;
- — Intent to commit the charged offense, including preparation or knowledge;
- — Absence of Mistake in committing the crime charged;
- — Identity; or
- — Common plan or scheme.
For example, the government might seek to introduce evidence of prior bank robberies for which the defendant was arrested or convicted if the tell-tale way in which the earlier robberies were conducted closely matched the way in which the robbery in question had been carried out. In this case, the prior robberies would be relevant with respect to the perpetrator’s identity, and the court would need to assess the probative value of the evidence in relation to its potential prejudicial impact on the defendant.
Although many people use the MIMIC device for remembering the “bad acts” rule, I personally find the language in the rule itself much more descriptive of the different rationale for admitting the evidence. According to the rule, the other purposes for which the evidence can be offered include “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Upon request by the defendant, the government is required to provide notice to the defendant in advance of trial of its intention to introduce such evidence. This notice gives the defendant an opportunity to either contest introduction of this evidence or to prepare for it.
Character Evidence in a Sex Offense Case
While a more detailed description is not possible in this brief overview, there are slightly different rules that apply to character evidence in a sex offense case. Generally, it is not permissible to introduce any evidence that an alleged victim engaged in other sexual behavior or had a “sexual predisposition.” There is an exception in criminal cases for evidence of specific instances of sexual behavior by the alleged victim offered to prove consent or to prove that a person other than the accused was the source of semen, injury or other physical evidence. There is also an exception for evidence “the exclusion of which would violate the constitutional rights of the defendant.”
Character evidence should be distinguished from “habit” evidence, which is generally admissible. Habit evidence is introduced for the purpose of showing that an individual acted in a particular way on a certain occasion based on that person’s tendency to respond that way on other occasions. For example, a secretary could testify that she stopped by the post office to mail outgoing correspondence on her way to lunch each day as evidence that she also did so on the day in question.
Because evidence of good character alone is enough to create a reasonable doubt as to a defendant’s guilt, even if other evidence against the defendant is “convincing,” the rules of the introduction of character evidence can be a valuable tool in the defense lawyer’s arsenal, so much so that a lawyer who fails to use it effectively could be liable for providing ineffective assistance of counsel. At the same time, the tool when available must be used carefully and strategically. As Justice Jackson put it over a half century ago, character evidence “at its best opens a tricky line of inquiry as to a shapeless and elusive subject matter. At its worst it opens a veritable Pandora’s box of irresponsible gossip, innuendo and smear.”