Chapter 4 - §3. Character evidence offered to prove propensity

• Jurisdiction: United States

§3. Character evidence offered to prove propensity

§3.1. Generally excluded. Generally, character evidence cannot be admitted to establish propensity—a tendency or predisposition to act in a particular manner—to imply that a person acted in a certain way on a particular occasion. Evid. C. §1101(a); 1 Witkin, California Evidence (5th ed.), Circumstantial Evidence §44; see People v. Erskine (2019) 7 Cal.5th 279, 295; People v. Wang (2d Dist.2020) 46 Cal.App.5th 1055, 1074-75; 1 Witkin, California Evidence (5th ed.), Circumstantial Evidence §76; 7 Cal. Law Revision Comm'n Rep. (1965) pp. 1205, 1207; see, e.g., People v. Ka Yang (3d Dist.2021) 67 Cal.App.5th 1, 38-39 (expert's testimony of symptoms of postpartum depression and postpartum psychosis was impermissible character and propensity evidence during prosecution for murder of baby). For example, the prosecution in a theft trial cannot introduce evidence of a defendant's larcenous character to suggest that the defendant followed his propensity to steal by committing the charged theft. Similarly, a defendant charged with theft of a police car cannot introduce evidence of a police officer's propensity to be careless about his patrol duties to suggest that the officer left his car unlocked, running, and unattended, resulting in its theft by someone else. One of the purposes of this evidentiary rule is to ensure that a defendant is tried upon the crime for which he is charged and not upon his past conduct. See People v. Nicolas (4th Dist.2017) 8 Cal.App.5th 1165, 1176. The general rule, however, has four significant exceptions: (1) a defendant can present evidence of his own good character or character trait, (2) a defendant can present evidence of a victim's negative character or character trait, (3) the prosecution can present evidence that a defendant committed another sexual offense, and (4) the prosecution can present evidence that a defendant committed another act of family violence. See Evid. C. §1101(a) (recognizing exceptions in Evid. C. §§1102, 1103, 1108, 1109).

§3.2. Exception—Defendant's good character. As an exception to the general rule prohibiting the admission of character evidence to prove propensity, a defendant can present evidence of his own good character or character trait to establish his propensity to act in a way contrary to the charged conduct. See Evid. C. §1102(a); People v. Box (2000) 23 Cal.4th 1153, 1212, disapproved on other grounds, People v. Martinez (2010) 47 Cal.4th 911. Evidence of the defendant's good character must be in the form of opinion or reputation evidence, not specific-acts evidence. See Evid. C. §1102(a); 7 Cal. Law Revision Comm'n Rep. (1965) p. 1207; see, e.g., People v. Clark (2011) 52 Cal.4th 856, 934-35 (D was permitted to testify about his own good character); People v. McAlpin (1991) 53 Cal.3d 1289, 1309-10 (although D's witnesses could not testify about specific instances when D had opportunity to but did not molest their children, they could give opinion based on their long-term observation of D with their children that D showed normal behavior); see also People v. Stoll (1989) 49 Cal.3d 1136, 1153 (expert opinion on D's character must satisfy requirements under Evid. C. §801). See "Permitted types—Generally," ch. 4-A, §1.3.1(1).

Federal Comparison
The FREs include a provision comparable to Evid. C. §1102, permitting a defendant to present evidence of his pertinent character trait as an exception to the general federal rule that character evidence is not admissible to establish propensity. FRE 404(a)(2)(A). For example, the trait of being law-abiding has been held to be "pertinent to [the defense in] almost all" prosecutions. In re Sealed Case (D.C.Cir.2003) 352 F.3d 409, 412.

1. Admitting defendant's good character.

(1) Relevant to charged offense. For a defendant's good character or character trait to be admissible under Evid. C. §1102(a), it must be relevant to a character trait involved in the charged offense. See McAlpin, 53 Cal.3d at 1305; see, e.g., People v. Kramer (4th Dist.1968) 259 Cal.App.2d 452, 466 (D presented character witnesses to testify to his character as "ethical medical practitioner" to establish he was not guilty of performing abortions). Such evidence is relevant if it is inconsistent with the charged offense. McAlpin, 53 Cal.3d at 1305. For example, if a defendant was charged with theft, he could introduce evidence that he is an honest person. Id. Similarly, a defendant could introduce evidence that shows his propensity to commit some different or relatively less serious offense than the charged offense. See, e.g., People v. Felix (4th Dist.1999) 70 Cal.App.4th 426, 431 (D presented character witness's testimony that he was heroin user, not cocaine user as charged). See "Fact determinations under Evid. C. §403," ch. 7, §3.1.

(2) Probative value not outweighed. For a defendant's good character to be admissible under Evid. C. §1102(a), its probative value must not be outweighed by the relevant factors under Evid. C. §352. See McAlpin, 53 Cal.3d at 1310 n.15. See "Discretionary Exclusion Under Evid. C. §352," ch. 6, §1 et seq.

2. Rebutting defendant's good character.

(1) Generally. If a defendant presents evidence of his good character, he has opened the door to the issue of his character and the prosecution can rebut the evidence. Evid. C. §1102(b); People v. Wagner (1975) 13 Cal.3d 612, 617-18; see People v. Thompson (2016) 1 Cal.5th 1043, 1116. By offering evidence of his good character, the defendant widens the scope of the evidence of bad character that may be introduced in rebuttal to present "a more balanced picture" of his personality. People v. Westerfield (2019) 6 Cal.5th 632, 728. The defendant must be the one to introduce the evidence; the prosecution cannot rebut its own evidence of the defendant's good character. See, e.g., People v. Hall (1st Dist.2018) 23 Cal.App.5th 576, 591-92 (D did not place his character for peacefulness at issue during his testimony; evidence that D stated he was "peaceful person" was introduced by prosecution in its case-in-chief). The evidence can be rebutted by presenting prosecution witnesses and cross-examining the defendant's character witnesses about their knowledge of the defendant's character. See Evid. C. §1102(b); People v. Gutierrez (2002) 28 Cal.4th 1083, 1139; Wagner, 13 Cal.3d at 618-19; People v. Marsh (1962) 58 Cal.2d 732, 745. Regardless of the method used, the scope of rebuttal is limited to the character traits the defendant put in issue. People v. Young (2019) 7 Cal.5th 905, 948; People v. Rodriguez (1986) 42 Cal.3d 730, 792 n.24; see Marsh, 58 Cal.2d at 745; Hall, 23 Cal.App.5th at 591. For example, presenting evidence that the defendant is honest does not open the door to evidence of other negative character traits, such as lasciviousness or violence. See, e.g., Marsh, 58 Cal.2d at 745 (D's character witness could not be cross-examined about D's excommunication from Mormon Church on moral grounds to rebut D's character for truth, honesty, and integrity); People v. Roberson (1st Dist.1959) 167 Cal.App.2d 429, 431-32 (D's character witness could not be cross-examined about D's drug or petty-theft convictions to rebut D's character for truth and veracity).

(2) Types of permissible evidence. In rebutting the defendant's character evidence, the prosecution is limited to presenting opinion or reputation evidence; the prosecution cannot offer extrinsic evidence of specific acts. See Evid. C. §1102(b); Wagner, 13 Cal.3d at 618-19; Felix, 70 Cal.App.4th at 431. But in cross-examining a defendant's character witness, the prosecution can ask whether the witness has heard or, in some instances, is aware that the defendant committed a specific act or acts to test the witness's knowledge of the defendant's character (e.g., "have you heard the defendant was cheating on his wife"), as long as those instances of conduct are inconsistent with the character trait introduced by the defense witness. Wagner, 13 Cal.3d at 619; People v. Hempstead (1st Dist.1983) 148 Cal.App.3d 949, 954; see, e.g., People v. Ramos (1997) 15 Cal.4th 1133, 1173 (witness could be asked about evidence of D's possession of weapons to rebut D's character of nonviolence based on religious recommitment); People v. Tuggles (3d Dist.2009) 179 Cal.App.4th 339, 358 (witness could be asked if she had heard D wanted to "shoot up the block" to rebut D's character for nonaggression). In such a cross-examination of a defendant's character witness, there must be (1) a proper foundation, (2) proper phrasing, and (3) a proper limiting instruction if one is requested by the defense.

(a) Proper foundation. When cross-examining a character witness about specific-acts evidence, the prosecution must lay a proper foundation for the question. This foundation requires that the prosecution have a good-faith belief that the defendant actually engaged in the specified misconduct. Wagner, 13 Cal.3d at 619; Marsh, 58 Cal.2d at 745; Tuggles, 179 Cal.App.4th at 357-58. This good-faith requirement prohibits the prosecution from asking about events having little or no basis in fact. People v. Eli (1967) 66 Cal.2d 63, 79; see Hempstead, 148 Cal.App.3d at 953. The court's determination of whether the prosecution has the required good-faith belief should always be accomplished outside the presence of the jury. Eli, 66 Cal.2d at 79; Kramer, 259 Cal.App.2d at 466; see Michelson v. U.S. (1948) 335 U.S. 469, 481 & n.18. See "Fact determinations under Evid. C. §403," ch. 7, §3.1.

Note
The California Supreme Court has suggested that the prosecution must have not only a goodfaith belief that the act happened but also a belief that the act "would probably result in some comment among acquaintances." See Eli, 66 Cal.2d at 79. For example, in Eli the Court held the prosecution should have been prohibited from asking if a defense character witness had heard that the defendant committed a repulsive sex act

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