§404 Character Evidence, Crimes, or Other Acts

• Library: Evidence Restated Deskbook (2021 Ed.)

§404 Character Evidence, Crimes, or Other Acts

A. Character evidence

1. Prohibited uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

2.Exceptions for a defendant or victim in a criminal case. The following exceptions apply in a criminal case:

a.Character of accused. Evidence of a pertinent trait of character may be offered by an accused or by the prosecution:

(i) to rebut evidence of good character presented by the accused; or

(ii) to show the accused's character for violence when the defense claims self-defense and has attacked the victim's character for violence to substantiate that claim.

b.Character of victim. When the defense claims self-defense, evidence of the victim's character for violence and turbulence may be offered by the accused to show the victim was the first aggressor or by the prosecution to rebut evidence of the victim's character.

3.Exceptions for a witness. Some exceptions exist for evidence of the character of a witness, as provided in §§607, 608, and 609 of this deskbook.

B. Crimes, wrongs, or other acts

1. General Rule. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. But it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident, or consciousness of guilt. It may also be admissible:

· to show the circumstances or the sequence of events surrounding the offense charged (the " res gestae" exception); or

· when it is otherwise logically and legally relevant.

2. Exception. Crimes of a sexual nature involving victim under 18 years of age. In prosecutions for crimes of a sexual nature involving a victim under 18 years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

Notes

A. Character evidence

Generally

Missouri caselaw, generally, prohibits the introduction of character evidence as proof that an individual acted in conformity with that person's character or with a trait of that character. This is so because "evidence on the collateral issue of character . . . comes with too much dangerous baggage of prejudice, distraction from the issues, and surprise." Williams v. McCoy, 854 S.W.2d 545, 558 (Mo. App. S.D. 1993) (quoting Williams v. Bailey, 759 S.W.2d 394, 396 (Mo. App. S.D. 1988)); see also:

· State v. Goodwin, 43 S.W.3d 805, 815 (Mo. banc 2001)

· State v. Smith, 32 S.W.3d 532, 549 (Mo. banc 2000)

· State v. Slagle, 206 S.W.3d 404, 409 (Mo. App. W.D. 2006)

· Haynam v. Laclede Elec. Coop., Inc., 827 S.W.2d 200, 207 (Mo. banc 1992)

In addition to the exceptions to the general rule that follow, see §403, supra, Penalty phase proof. See also §412, Sex Crime Cases; Relevance of Victim's Past Conduct, infra.

1. Permitted uses

Offered by accused

A defendant may offer "evidence of . . . good character concerning the character traits inherent in the crime charged . . . to show the improbability that the defendant committed the charged crime and as substantive proof of innocence." Marschke v. State, 185 S.W.3d 295, 307 (Mo. App. S.D. 2006) (citation omitted). Only reputation evidence is admissible and not specific acts, State v. Stewart, 265 S.W.3d 309, 315 (Mo. App. S.D. 2008), or opinion evidence, State v. Burke, 809 S.W.2d 391, 396 (Mo. App. E.D. 1990) ("A personal view of the witness as to the character of the accused is immaterial and not admissible."). To be admissible, the evidence of general good character should be restricted to the traits of character involved in the crime charged. Marschke, 185 S.W.3d at 307. A person is qualified to testify as to the defendant's reputation if it is shown that the person is familiar with the general reputation of the defendant "in the neighborhood or among the people with whom the witness associates." State v. Schell, 843 S.W.2d 382, 383–84 (Mo. App. E.D. 1992); see alsoState v. Smith, 314 S.W.3d 802 (Mo. App. E.D. 2010).

Offered by prosecution to rebut

If the defendant places the defendant's character in issue by calling a witness to testify to the defendant's good character, the State may rebut with evidence designed to show the defendant's bad character. State v. Reilly, 674 S.W.2d 530, 532 (Mo. banc 1984) (the trial court was within its discretion in allowing into evidence a sheriff's contrary reputation testimony of the defendant's character as perceived by police officers in the defendant's community). The rebuttal must go to the evidence of good character placed in issue. State v. Guidorzi, 895 S.W.2d 225 (Mo. App. S.D. 1995) (the State was entitled to rebut the defendant's evidence of good reputation for honesty by introducing evidence of bad reputation for honesty); seeState v. Supinski, 779 S.W.2d 258, 261 (Mo. App. W.D. 1989).

Although normally the evidence of character of an accused comes from reputation witnesses, if a defendant opens the door by testifying to good character on direct, the State may also rebut. State v. Skinner, 734 S.W.2d 877, 883 (Mo. App. E.D. 1987) (the trial court did not abuse its discretion in allowing a police officer to testify that the defendant had a reputation for violence in the community because the officer's testimony was introduced in rebuttal after the defendant had testified on direct examination that he was not a violent person—the evidence was proper impeachment of the defendant's testimony). But an accused does not inject character into the case, except for truth and veracity, merely by testifying in the case. See State v. Williams, 87 S.W.2d 175, 180 (Mo. banc 1935); see also §§607, 608, and 609 of this deskbook, which deal with impeachment.

Offered by the prosecutor to show bad character of the accused after the defense attacked the character of the victim to support a claim of self-defense

When a defendant offers evidence of the bad character of the victim to substantiate a plea of self-defense, the defendant opens the door to like evidence being brought in about the defendant's own character. The rationale for this rule is stated in State v. Robinson, 130 S.W.2d 530, 531–32 (Mo. 1939) (citations omitted):

The same reasoning which allows an accused to show his victim's bad reputation underlies the admissibility of the accused's bad reputation. An accused is entitled to a fair trial. So, too, is the State, representing the victim and all citizens, that crime may be curbed. It will not do to say that only a part of the evidence bearing upon an issue is admissible. Impartial justice cannot be dispensed by allowing one litigant to present a given type of evidence bearing upon an ultimate factual issue while at the same time denying to his adversary the right to present his version of said issue by evidence of equal inherent quality. . . . We here hold that where an accused tenders the factual issue of the bad character of the victim of his assault to substantiate his plea of self-defense he thereby extends the scope of the inquiry beyond the res gestae and opens up for inquiry all evidence of like quality having probative value on the merits of said ultimate factual issue.

Accordingly, in Robinson, it was held proper for the State to adduce testimony that the defendant had a bad reputation as a quarrelsome, violent, and turbulent man after the defendant adduced reputation testimony that the victim had a bad reputation for being quarrelsome, violent, and turbulent. See also:

· State v. Hill, 614 S.W.2d 744, 752 (Mo. App. S.D. 1981) (no error in "admitting evidence that the defendant had a reputation for being aggressive and a heavy drinker" because it "was elicited by the state only after the defendant had . . . established that [the victim] had a reputation for fighting and alcohol and drug abuse" to support the defense of self-defense)

· State v. Schlup, 785 S.W.2d 796, 800–02 (Mo. App. W.D. 1990) (the defendant opened the door to the prosecutor asking him on cross-examination whether his prior assault conviction illustrated his character of being violent because, on direct examination, he characterized the victim as a violent and aggressive person to bolster his self-defense theory)

· State v. Schell, 843 S.W.2d 382, 383 (Mo. App. E.D. 1992) (no error in introducing evidence that the defendant had a reputation for violence when the defendant claiming self-defense cross-examined the State's witness as to the victim's reputation as a fighter)

Cross-examination of defendant's character witness

A character witness may be cross-examined to "test the trustworthiness, knowledge and good faith of the witness." Floyd v. State, 77 S.W.3d 98, 103 (Mo. App. S.D. 2002) (quoting State v. Creason, 847 S.W.2d 482, 486 (Mo. App. W.D. 1993)). In addition to showing such things as interest, bias, bad reputation for truthfulness, prior inconsistent statements, conviction of a crime, and bad acts probative of a liar (see §§607, 608, and 609 of this deskbook) and inquiry regarding whether or not the witness heard about things that the defendant had done (see §405.A, infra), the cross-examiner may ask questions that test the witness's ability to assess the character trait testified to. State v. Givens, 851 S.W.2d 754, 763–64 (Mo. App. E.D. 1993) (witnesses who essentially testified that a defendant accused of child molestation had a reputation as a good parent could be asked on cross-examination whether the witnesses knew what a child molester looked...