Character Evidence

The problem with using evidence of the defendant's character at trial is that it can distort the facts and prejudice the jury. Jurors might unknowingly give more weight to character evidence than material evidence.

Serial killer Ted Bundy, for example, went out of his way to exude positive character traits in public and was able to evade authorities because of it. He worked as a crisis counselor for sexual assault victims. He would later confess to the sexual assault and murder of dozens of women.

Still, it's also true that past behavior is a strong indicator of future behavior. This article explains when character evidence is applicable in criminal trials, including:

• The character of a witness
• The character of the victim
• Prior acts of the criminal defendant

Our discussion focuses on the federal rules of evidence (FRE). State rules generally follow the federal guidelines, but it's best to consult with an attorney in your area to know how they will impact your case.

The Admissibility of Character Evidence

The general rule in criminal law is that evidence of the character of a defendant is inadmissible unless the defendant raises it. The prosecutor cannot use character evidence to show that the defendant acted in a certain way on a specific occasion (like the time of the crime).

For example, suppose a defendant tends to exaggerate or lie to friends and family. This is not admissible as evidence of a person's embezzlement or to prove he defrauded others out of money or property.

The Use of Character Evidence

A defendant may use evidence of his good character or evidence of the victim's pertinent trait as long as it's relevant to the crime at hand.

For example, suppose a defendant in a homicide case offers evidence of self-defense. Under FRE 404, the prosecution may offer evidence to show the alleged victim's peaceful character. This would rebut the defendant's claim that the victim was the first aggressor. Or, the prosecution can provide evidence of the defendant's same pertinent bad character trait they allege the victim had.

The prosecution must provide reasonable notice to the defendant if they intend to use this type of evidence. They also must state how they are using this evidence, such as:

• Case-in-chief (proving motive, intent, absence of mistake, etc.)
• Impeachment (attacking the credibility of a witness's testimony)
• Rebuttal (discrediting the defense)

But this doesn't mean that a prosecutor can never use character evidence. Under FRE 405, admissible character evidence includes:

• Testimony about the person's reputation (e.g., co-workers)
• Testimony in the form of an opinion (e.g., neighbors)
• Evidence of specific acts on cross-examination of a character witness
• Specific instances of conduct (where it is an essential element of a charge, claim, or defense)

Character Evidence in Sex Offense Cases

Under FRE 412, evidence of a victim's past sexual behavior or predisposition in sex offense cases is not admissible. This protects the victim's privacy and avoids potential prejudice or sexual stereotyping. This rule applies to both civil and criminal cases.

There are very limited exceptions where the trial court may admit such evidence. In civil cases, the probative value must substantially outweigh the danger of harm to any victim and unfair prejudice to any party.

In criminal cases, the court may admit evidence of a victim's sexual behavior for the following limited purposes:

• If offered to prove someone other than the defendant was the source of semen, injury, or other physical evidence
• To prove consent, if offered by the defendant
• Evidence whose exclusion would violate the defendant's constitutional rights

The evidence offered must be specific instances, not the alleged victim's general attitude toward sex.

Character Evidence and the Sentencing Stage

As discussed above, character evidence generally isn't allowed during the trial phase to show that a person acted a certain way. But it's frequently introduced during sentencing. Prosecutors often present evidence of past misconduct or lack of empathy to argue for more serious punishment.

For example, someone who violated the terms of parole on a prior conviction might be more likely to get detained without parole in the future.

Defense attorneys often introduce character witnesses during sentencing to show the defendant's positive traits, charitable deeds, or other law-abiding behavior.

For example, consider convicted murderer Stanley "Tookie" Williams. Williams was responsible for multiple gang-related murders in the Los Angeles area. But before his execution in 2005, his defense team asked the courts to spare his life because of the positive work he did while incarcerated, promoting nonviolence and alternatives to street gangs.

Character vs. Habit

Habit is often confused with character, but it's admissible as evidence in certain circumstances. A habit is a specific, regular, and consistently repeated behavior. It doesn't describe a personality or character trait of the person, but something they do habitually or regularly. So, someone's habits or tendencies are sometimes relevant to a case.

For example, in stalking cases, the crux of the criminal act is a pattern of repeated behavior. This behavior causes fear or substantial emotional distress.

Suppose the defendant visited a specific coffee shop every morning for years. That fact is more likely than not evidence that he was probably at the coffee shop on the morning of a particular robbery. Occasionally, some character traits align with a habit, so the distinction between the two can sometimes be hard to make.

Character Evidence in Civil Suits

In civil suits, evidence that a person has a certain character trait is inadmissible to prove someone acted that way on a particular occasion. But, character evidence is admissible where it's an integral issue in a dispute, as in defamation cases, or where a party puts character at issue.

Have an Attorney Evaluate the Evidence Against You

If you're charged with a crime, the verdict will rest on various evidence. This may include character evidence (in limited situations). A skilled legal professional will:

• Be able to evaluate the evidence
• File motions for exclusion
• Develop a strategy to rebut negative evidence

Get started today by contacting an experienced criminal defense attorney near you.