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Criminal Evidence: Character Evidence

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Criminal Evidence: Character Evidence ADMINISTRATION OF JUSTICE BULLETIN NO. 2013/06 | JUNE 2013 Criminal Evidence: Character Evidence Jessica Smith I. Introduction 2 A. Distinguished from 404(b) Evidence 3 B. Distinguished from Habit 3 C. Relevant Rules 3 D. Analysis 3 II. General Rule: Character Evidence Is Inadmissible to Show Propensity but Is Otherwise Admissible 5 III. Exceptions to the General Rule 6 A. Defendant’s Character 6 1. Defendant May Offer Evidence of a “Pertinent Trait” of Character 6 2. “Pertinent Trait” 6 a. Law-abidingness 7 b. Peacefulness 7 c. Honesty and Truthfulness 7 d. Sobriety/Lack of Drug Use 8 3. Prosecution May Rebut the Defendant’s Evidence 8 4. When the Defendant Testifies 8 B. Victim’s Character 8 1. Defendant May Offer Evidence of a “Pertinent Trait” of the Victim’s Character 8 a. Rape Shield Law 8 b. Violence/Aggression 9 c. Drunkenness 9 2. Prosecution May Offer Evidence in Rebuttal 9 3. Homicide Cases 10 4. When Victim Testifies 10 C. Witness’s Character 10 D. Character of Other Persons Inadmissible to Show Propensity 11 IV. Methods of Proving Character 11 A. Proving the Defendant or Victim’s Character 11 1. Reputation or Opinion Testimony 11 a. Foundation 11 Jessica Smith is a School of Government faculty member who specializes in evidence and criminal law and procedure. 1 © 2013 School of Government. The University of North Carolina at Chapel Hill 2 Administration of Justice Bulletin No. 2013/06 | June 2013 2. Specific Instances of Conduct 12 a. When Permitted 12 i. Character Is an Element 12 ii. On Cross-Examination of Witness Who Testified to Opinion or Reputation 12 iii. Exclusive List of Circumstances 13 b. Foundation 13 B. Proving a Witness’s Character 13 1. Reputation or Opinion Regarding Truthfulness/Untruthfulness 14 a. Evidence of Truthfulness Admissible Only After Truthfulness Has Been Attacked 14 b. Foundation 14 2. Specific Instances of Conduct 14 a. To Impeach under Rule 609 14 b. Inquiry on Cross If Probative of Truthfulness or Untruthfulness 14 i. Only Applies to Character for Truthfulness/Untruthfulness 14 ii. Discretionary Decision; Rule 403 Applies 15 iii. Extrinsic Evidence 16 iv. Foundation 16 C. Expert Testimony 16 V. Trial Practice 16 ___________________________________________________________________________________ I. Introduction In some legal disputes, character may be an issue in a case. For example, in litigation to determine child custody, the fitness of a parent may be an issue. 1Brandis & Broun, North Carolina on Evidence 273 (7th ed. 2011) (hereinafter Brandis & Broun). In these cases, character evidence always is admissible and the only question remaining is the proper method of proof. Id. These situations, however, almost never arise in the criminal context. In criminal cases, character evidence typically only becomes an issue when the proponent seeks to introduce it to show that a person acted in conformity with that character on a particular occasion. This is often referred to as evidence of propensity. In this context, character evidence is offered as circumstantial evidence of guilt or innocence, and it constitutes substantive evidence. Id. at 278; see, e.g., State v. Bogle, 324 N.C. 190, 199 (1989) (the defendant is entitled to an instruction that his or her character evidence is substantive evidence of his or her innocence). For example, in a fraud case, the defendant may seek to introduce evidence of his or her character for scrupu- lous honesty to disprove the element of fraudulent intent. As described below, North Carolina Evidence Rule 404(a) sets out the general rule that character evidence is inadmissible as circum- stantial evidence of conduct. However, as is explained below, there are several important excep- tions to the general rule. In addition to discussing Rule 404(a), this bulletin covers Rule 405 (method of proving character evidence), Rule 607 (who may impeach), and Rule 608 (character of a witness). It also distinguishes character evidence from other types of evidence, such as prior bad acts and habit. © 2013 School of Government. The University of North Carolina at Chapel Hill Criminal Evidence: Character Evidence 3 A. Distinguished from 404(b) Evidence Rule 404(b) allows for the admission of evidence of other crimes, wrongs, or acts for purposes other than to prove propensity. N.C. R. Evid. 404(b). Thus, for example, Rule 404(b) allows for admission of evidence that the defendant possessed incestuous pornography to show his intent to engage in sexual activity with his child. Rule 404(b) is a rule of inclusion that bars evidence in only one circumstance: when it is offered to show propensity. Thus, the distinction between Rules 404(a) and 404(b) is this: Rule 404(a) pertains to character evidence offered to prove propensity; Rule 404(b), by contrast, pertains to evidence offered for a purpose other than propensity. For a discussion of Rule 404(b), see Jessica Smith, Rule 404(b): Evidence of Other Crimes, Wrongs, or Acts (Mar. 2013), in The Survival Guide: Superior Court Judges’ Bench Book (UNC School of Government) (hereinafter The Judges’ Bench Book), under “Evidence,” www.sog.unc.edu/node/1092. B. Distinguished from Habit Habit and character are easily confused. A leading treatise distinguishes the two as follows: Character is a generalized description of a person’s disposition, or of the disposi- tion in respect to a general trait, such as honesty, temperance or peacefulness . Habit . is more specific. It denotes one’s regular response to a repeated situa- tion. If we speak of a character for care, we think of the person’s tendency to act prudently in all the varying situations of life—business, at home, in handling automobiles and in walking across the street. A habit, on the other hand, is the person’s regular practice of responding to a particular kind of situation with a specific type of conduct. Thus, a person may be in the habit of bounding down a certain stairway two or three steps at a time, of patronizing a particular pub after each day’s work, or of driving his automobile without using a seatbelt. The doing of the habitual act may become semi-automatic, as with a driver who invariably signals before changing lanes. 1 McCormick on Evidence 1081 (7th ed. 2013) (hereinafter McCormick). It is generally understood that habit evidence is both more probative and less prejudicial than character evi- dence. Id. at 1082. Thus, while there are strict limits on the admissibility of character evidence in a criminal trial, the rules are more permissive concerning habit evidence. C. Relevant Rules The evidence rules pertaining to character evidence are set forth in Appendix A, Character Evidence Rules. D. Analysis Figures 1 and 2, below, illustrate the character evidence analysis. The sections that follow the figures flesh out the details of the analysis. © 2013 School of Government. The University of North Carolina at Chapel Hill 4 Administration of Justice Bulletin No. 2013/06 | June 2013 Figure 1. Initial Determination in Character Evidence Analysis YES Proceed to Figure 2, below Is the character evidence being Consult other rules, such as: admitted to prove • Rule 404(b) (prior bad acts for purposes other than propensity) propensity? NO • Rule 405 (method of proving character) • Rule 406 (habit) • Rule 609 (impeachment with conviction of a crime) Figure 2. When and How Character Evidence Is Admissible to Show Propensity Evidence of Evidence of Evidence of Witness’s Character Defendant’s Character Victim’s Character (including defendants & victims who testify) Defendant may State may Defendant may State may Either side may use to attack or support introduce if it introduce only introduce if it introduce only in credibility pertains to a in rebuttal pertains to a rebuttal of: pertinent trait pertinent trait (1) Defendant’s evidence of a pertinent trait; or (2) Defendant’s evidence that the victim was the first aggressor in a homicide case Method Method of Proof of Proof Specific Reputation Specific Instances Reputation Instances of or Opinion of Conduct or Opinion Conduct In all instances (1) When character is an element of a To attack or support (1) Prior conviction charge or defense; or credibility but: of a crime under (2) On cross-examination of a witness (1) May refer only Rule 609 who testified to opinion or to character for (2) If probative of reputation truthfulness or truthfulness or untruthfulness and untruthfulness of (2) Evidence of the witness being truthfulness is examined or of admissible only if another witness, witness’s character as to which the for truthfulness has witness being been attacked cross-examined has testified —in court’s discretion —may not use extrinsic evidence © 2013 School of Government. The University of North Carolina at Chapel Hill Criminal Evidence: Character Evidence 5 II. General Rule: Character Evidence Is Inadmissible to Show Propensity but Is Otherwise Admissible Rule 404(a) states the general rule that evidence of a person’s character or a trait of his or her character is not admissible to prove that he or she acted in conformity therewith on a particular occasion. N.C. R. Evid. 404(a). Rule 404(a) frequently is described as a “general rule of exclu- sion.” State v. Bogle, 324 N.C. 190, 201 (1989). The rule is based on the notion that while propen- sity evidence has some probative value, that value is, as a general rule, exceeded by prejudice. 1 McCormick at 1023. The rule does not exclude all character evidence; it excludes character evidence only when offered to show propensity—that a person acted in conformity with that character. Thus, evi- dence of the defendant’s reputation as a drug dealer is not admissible to show that the defendant is guilty of trafficking in drugs.
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