§ 10.10 Key Points

• Jurisdiction: United States

§ 10.10 Key Points

Character evidence is a difficult subject because of the complexity of the rules and not because the concept is difficult.

General prohibition. Although character-as-proof-of-conduct may be probative, at least in some cases, it is generally inadmissible. 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. However, 1994 amendments drastically change this rule in sex offense cases (Rules 413-15).

Methods of proof. Rule 405(a) governs the methods of proof. Generally, only opinion and reputation evidence (not specific acts) are permitted to prove character when a Rule 404(a)(2) exception applies.

Accused's Character

The accused's character may be introduced in the following circumstances:

First, the accused may offer evidence of his character trait (but only through reputation or opinion evidence) under Rule 404(a). The trait must be pertinent to the crime 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. The introduction of "law-abiding" character, however, is a two-edged sword because it opens up the scope of the rebuttal evidence. Once the accused has introduced character evidence, the prosecution may respond by proffering rebuttal character witnesses. In addition, "[o]n cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct." Rule 405(a). There must be a good faith basis for this inquiry.

Second, in sex offense cases, the prosecution (plaintiff) may offer evidence of the accused's character under Rule 413 (sexual-assault), Rule 414 (child-molestation cases), and Rule 415 (civil cases). Rule 403 applies.

Third, if the accused introduces evidence of a victim's violent character in a self-defense case, the prosecution may respond with evidence of the accused's violent character. Rule 404(a)(2)(B)(ii).

Victim's Character

Self-defense cases. Under Rule 404(a)(2)(B), the accused may offer evidence of a victim's violent character (but only through reputation or opinion evidence) on the first-aggressor issue. Rule 404(a)(2)(C) recognizes a special rule in homicide cases. Any evidence that the victim was the first aggressor in a homicide...