§ 10.04 Accused's Character: FRE 404(a)(2)(A)

• Jurisdiction: United States

§ 10.04 Accused's Character: FRE 404(a)(2)(A)

In a criminal case, the accused may offer evidence of a pertinent trait of his character.²⁰ Once the accused introduces such evidence ("opens the door"), the prosecution may cross-examine the defense's character witness on the issue and offer rebuttal character evidence.

There are several limitations. First, it is the defendant's character at the time of the charged offense that is relevant. Second, Rule 405(a) limits the methods by which the accused may introduce character evidence.²¹ Under that provision, only opinion and reputation evidence, and not specific instances of conduct, may be used. Third, in sex offense cases, special provisions apply (Rules 412-15).²²

Jury instructions. In some cases, evidence of good character offered by the accused may have a significant impact. As the Supreme Court noted: "The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although, without it, the other evidence would be convincing."²³ Most federal courts hold that the "standing alone-reasonable doubt" instruction need not be given.²⁴ Some courts, however, take a different view—at least under certain circumstances.²⁵

Personal history. Typically, an accused introduces evidence of good character through the testimony of character witnesses. Sometimes, character evidence (or positive aspects of the accused's background) is brought out by the defense during the examination of the accused or another defense witness. This is often a risky tactic.²⁶ Once the issue is injected into the trial in a significant way, the prosecution's right to rebut may be triggered.²⁷ The prosecution, however, may not insinuate the subject into evidence on cross-examination and then attempt to rebut it.²⁸

[A] Pertinent Trait

The exception recognized in Rule 404(a)(2) permits the accused to introduce only evidence of a pertinent trait of character. In other words, the character trait must be relevant to the crimes charged—e.g., peaceful character in crimes of violence; honest character for theft; and truthful character for perjury. The federal cases also permit "law-abiding" character.²⁹ The introduction of "law-abiding" character, however, is a two-edged sword. The prosecution rebuttal evidence for the character trait of honesty should be limited to dishonesty; the accused's character for violence is not relevant as rebuttal evidence. Yet, if the accused introduces evidence of law-abiding character, the prosecution may rebut with any evidence of unlawful conduct—e.g., convictions for assault or possession of drugs.

[B] Prosecution Rebuttal Character Evidence

Once the accused has introduced evidence of a pertinent character trait, the prosecution may offer character evidence in rebuttal. The same limitations that apply to defense character evidence also apply to the prosecution. First, the character trait subject to rebuttal must be "pertinent" to the crime charged. For example, in a theft case, the defense character witnesses should testify about the defendant's character for honesty. Accordingly, the rebuttal witnesses's testimony should be limited to the same trait, i.e., dishonesty. Second, Rule 405(a) specifies the methods of proof. Hence, the prosecution, like the accused, is limited to opinion or reputation evidence.³⁰

[C] Prosecution Cross-Examination

The prosecution also may challenge defense character evidence through the cross-examination of the character witnesses. Rule 405(a) provides: "On cross-examination of the character witness, the court may allow inquiry into relevant specific instances of the person's conduct."³¹ Thus, a reputation or opinion witness may be asked on cross-examination "if she has heard" or "if she knows" of specific acts that reflect upon the character trait addressed by that witness during direct examination. However, the cross-examiner "must take the witness's answer"; that is, extrinsic evidence of the specific act is not admissible.

Although decided before the enactment of the Federal Rules, Michelson v. United States³² is the leading case on this subject. Michelson, charged with bribery of an IRS agent, called witnesses who testified about his good character for truth and honesty. The Supreme Court upheld the prosecutor's right to ask these witnesses whether they "had heard" about Michelson's 20-year-old conviction for a trademark violation and 27-year-old arrest for receiving stolen property.

The justification for this type of cross-examination is that the prosecution has the right to test the basis for the character witness's testimony. A character witness who is unaware of an accused's prior arrests and convictions would not appear to be very well informed about the defendant's reputation.³³ If the witness is informed but ignores...