§ 10.02 Rationale for Prohibiting Character Evidence

• Jurisdiction: United States

§ 10.02 Rationale for Prohibiting Character Evidence

Although character evidence may be probative, at least in some cases, it is generally excluded because it is extremely prejudicial. There is a concern that the jury will overvalue the evidence and convict the accused for who he is rather than for what he has done. The jury might conclude that the defendant may not be guilty of the charged crime, but that he must have gotten away with other crimes.⁶

The accused's character may be improperly introduced in a variety of ways, e.g., "mug" shots, rap sheets, prior arrests, and tattoos,⁷ as well as profile⁸ or syndrome evidence.⁹

--------

Notes:

^[6] One court summarized the arguments against admissibility this way: "(1) The overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present charge but because he has escaped punishment from other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated; and (4) the confusion of issues which might result from bringing in evidence of other crimes." Whitty v. State, 149 N.W.2d 557, 563 (Wis. 1967). See also State v. Derbyshire, 201 P.3d 811, 817 (Mont. 2009) ("One of the dangers in admitting such evidence is that the jury will prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. A defendant must not be convicted merely because he is an unsavory person. . . .") (citations and internal quotation marks omitted).

^[7] E.g., Belmar v. State, 621 S.E.2d 441 (Ga. 2005) (photograph of appellant's right upper back displaying a tattoo reading "12 gauge" where a 12-gauge shotgun was the murder weapon); Colyer v. Commonwealth, 2009 Ky. Unpub. LEXIS 34, at *15 (Mar. 19, 2009) ("The evidence of the tattoos could only be used to indicate that Appellant had acted in conformity with his potential gang affiliations. Such use of this evidence is prohibited under KRE 404(b).").

^[8] See State v. McMillan, 590 N.E.2d 23, 32 (Ohio 1990) (profile of sex abusers improper "group character evidence").

^[9] See State v. Pargeon, 582 N.E.2d 665 (Ohio App. 1991) (In a domestic violence prosecution, evidence that the accused's wife is a...