Use of Rule 404(a) Character Evidence in Civil Cases

• Publication year: 1994
• Pages: 1801

23 Colo.Law. 1801 Colorado Lawyer 1994.

1994, August, Pg. 1801. Use of Rule 404(a) Character Evidence In Civil Cases

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1801

Vol. 23, No. 8, Pg. 1801

Use of Rule 404(a) Character Evidence In Civil Cases

by Lawrence M. Zavadil

Q: May a defendant in a civil case present character evidence pursuant to Colorado Rules of Evidence ("C.R.E.") 404(a) for the purpose of proving that the defendant or another acted in conformity therewith?

A: Yes, If the allegation involved is criminal in nature and the evidence satisfies other standards for admissibility.

Assumed Facts

Mary Student sues Joe Teacher for outrageous conduct based on an allegation that he sexually assaulted her. Teacher denies the alleged assault and claims that Student was the sexual aggressor.

Other teachers are willing to testify to Teacher's good character, and that he would never engage in the alleged conduct. The same witnesses can testify to Student's reputation for aggressive and unwelcome sexual advances toward authority figures. Teacher seeks to introduce the testimony of his colleagues. What result?

Discussion

Subject to certain exceptions, the general rule is that character evidence is not admissible as circumstantial evidence to prove conduct.(fn1) C.R.E. 404(a) and Federal Rules of Evidence ("F.R.E.") 404(a) set forth the general rule:(fn2)

(a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same....

A majority of jurisdictions,(fn3) most commentators(fn4) and the Advisory Committee Notes for F.R.E. 404 take the position that Rule 404(a) applies only in criminal cases. However, the Colorado Court of Appeals, the U.S. Court of Appeals for the Tenth Circuit and the U.S. Court of Appeals for the Fifth Circuit have decided that Rule 404(a) character evidence is admissible in a civil case when the claim at issue is criminal in nature and the evidence is otherwise admissible.(fn5)

No court has yet articulated a test for when a civil case is "criminal in nature." However, in Perrin v. Anderson,(fn6) the Tenth Circuit...