§ 10.09 Character as Element of a Cause of Action or Defense

• Jurisdiction: United States

§ 10.09 Character as Element of a Cause of Action or Defense

If character is an element of a crime, cause of action, or affirmative defense ("character in issue"), the prohibition of Rule 404(a) does not apply.¹²⁴ "Character in issue" presents a fundamentally different use of character evidence than the circumstantial use of character. If character is an element, it must be proved. Rule 405(b) provides: "When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct." Note that this rule permits the admissibility of evidence of specific acts.

Unfortunately, the phrase "character in issue" can be misleading because courtroom parlance frequently refers to the exceptions in Rule 404(a)(2) as "opening the door" or "putting the accused's character in issue." This is not the same thing. Even if an accused introduces honest character in a theft prosecution, honest character is not an element of theft.

"Character in issue" evidence is rare. Probably the most import ant example is a negligent entrustment, hiring, or supervision case.¹²⁵ The gist of a negligent entrustment cause of action is entrusting an incompetent employee with a dangerous instrumentality; hence, incompetence (character trait) is an element of the cause of action.¹²⁶Defamation suits also illustrate this issue. If a plaintiff sues for defamation because the defendant called the plaintiff a "liar," the defendant can raise "truth" as a defense. In such a case, the plaintiff's character for truthfulness is an element of the defense. This defense requires proof that the plaintiff is a "liar"—i.e., has an untruthful character. In addition, character is "in issue" when a party seeks compensation for a damaged reputation in a libel action.¹²⁷

--------

Notes:

^[124] See Fed. R. Evid. 404 advisory committee's note ("Character may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as 'character in issue.' Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject.").

^[125] E.g., Parrish v. Luckie, 963 F.2d 201, 205...