§405 Methods of Proving Character

• Library: Evidence Restated Deskbook (2021 Ed.)

§405 Methods of Proving Character

A. By reputation. When evidence of a person's character or character trait is admissible, it may be proved by testimony as to reputation. On cross-examination of the character witness, the court may allow good faith inquiry as to what the witness may have heard regarding specific instances of conduct.

B. By specific instances of conduct. 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.

Notes

A. Reputation

Direct examination of the character witness

Of the recognized methods of proof of character—reputation, opinion of a witness, or specific instances of conduct—reputation poses the least danger of arousing prejudice, causing confusion, injecting unfair surprise, or wasting time. Accordingly, '"[a]fter the defendant has voluntarily put his character in issue it is competent for the prosecution to meet the issue thus presented by evidence of bad reputation.'" State v. Goins, 306 S.W.3d 639, 645 (Mo. App. S.D. 2010) (quoting State v. Crow, 17 S.W. 745, 746 (Mo. 1891)).

Rejection of proof of character through opinion rests on a belief that it represents "personal views," which are "immaterial." State v. Goodwin, 65 S.W.3d 17, 24 (Mo. App. S.D. 2001); State v. Smith, 314 S.W.3d 802 (Mo. App. E.D. 2010).

Rejection of proof of character through specific acts additionally reflects the view that a person's "'character is to be judged by the general tenor and current of his life, and not by a mere episode in it.'" State v. Duncan, 467 S.W.2d 866, 868 (Mo. 1971) (quoting State v. Colvin, 126 S.W. 448, 461 (Mo. 1910)), abrogated on other grounds by State v. Waller, 816 S.W.2d 212 (Mo. banc 1991).

A witness may testify as to reputation once it has been demonstrated that the witness possesses '"such acquaintance with the person, the community in which he has lived, and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded.'" State v. Antwine, 506 S.W.2d 397, 399 (Mo. 1974) (quoting 97 C.J.S. Witnesses § 55 (1957)); see also State v. Schnelle, 398 S.W.3d 37, 43 (Mo. App. W.D. 2013) (no error in excluding a witness's testimony regarding the victim's reputation for truthfulness "[g]iven the . . . witness' equivocation concerning whether he had any knowledge of the way in which the victim was perceived by others in the community (as opposed to his personal opinions)."

Important to use the appropriate "magic language" in questioning the reputation witness to communicate why reputation evidence is being offered

It is important to recognize and to communicate to counsel and the trial court, through the use of the proper "magic language" in questioning a witness, why character evidence is being offered because, in addition to the use of reputation character evidence to prove that a defendant is not the kind of person to commit a crime charged or in response to that evidence offered to prove that the defendant is the kind of person who would do so, reputation evidence may also be used to impeach a witness's character for truth and veracity. Of course, that should not be done if the person impeached has not yet testified. Nor should it be done to bolster a witness before the witness has been impeached as "untruthful." See §608 of this deskbook.

The Supreme Court has provided advice in this regard as follows:

As a practical matter, one of the most important factors in ascertaining which set of rules apply, i.e. knowing which pigeonhole you are in, has to do with using the proper "magic language" to describe the reputation you are asking about. In particular, reputation for impeachment or rehabilitation purposes has traditionally been asked about in terms of reputation for truth and veracity. Reputation for the purpose of showing substantive character in a criminal case has traditionally been asked about in terms of reputation as a law-abiding citizen or...