Character Evidence

• Author: by Colonel Francis A. Gilligan
• Pages: 02

1. INTRODUCTION

   Character evidence pointedly shows the distinction between logically and legally relevant evidence. When determining the admissibility of character evidence, the military judge, pursuant to the balancing test of Military Rule of Evidence 403, must decide If the probative value of such evidence outweighs the prejudicial effect Evidence that the accused is known as a criminai or has a criminai disposition may be iogically relevant as to guilt, but the prejudicial effect of such evidence may outweigh the probative value.

   The rules of admissibility for character evidence differ for evidence offered befare or after findings; the rules of admissibility are relaxed after findings.2 We must also distinguish evidence between uncharged acts of misconduct and credibility of witnesses

   Uncharged misconduct evidence differs from character evidence as to the method of proof and the underlying theory of logical relevance. Evidence of uncharged acts of misconduct is admissible to show that it 1s likely that the accused committed the crime ~nquestion. Specific acts are not admissible to show character The logical relevance of character evidence is to show the character of the person described and. ultimateiy, be considered as circumstantial evidence of conduct.

   After any witness, including the accused, has testified, evidence of a specific character trait for veracity IS admissible to diminish credibility Evidence of the accused's good character an a trait in issue, such as honesty, whether or not the accused testifies, is admissible as circumstantial evidence of innocence.j Thus, character

   evidence diffen from credibility evidence concerning truthfulness as to the timing of the introduction of the evidence and the charm ter trait. Additionally, character evidence IS admitted as substantive evidence: evidence as to credibility is admitted for the limited purpose of determining B witness' veracity

   A third area to be distinguished IS the introduction of character evidence concerning truthfulness to rehabilitate a witness under Military Rule of Evidence 608.8 Character evidence under Rule 608 is admissible only for impeachment or bolstering after attack, not as circumstantial evidence that the accused committed the offense charged.'Eridence of the good character of the accused may be admitted whether or not the accused has testified. This is distinguished from character evidence as to truthfulness Evidence a3 to the character trait in issue LS admissible to show that It is improbable that the accused committed the offense charged.

   A fourth area to distinguish are the other methods of impeachment that, absent limiting instructions, may circumstantiaiiy show the bad character of the accused. Rule 609 permits the impeachment of the accused by prior conviction under varmus cmumstances. Whde thls ma? inferentially show that the accused LS a bad person, itutrwtions to the jury are meant to clarify the purpose of the prior conriction.6 Before permitting such impeachment under Rule 609(a)(l), the militaryjudge must apply Rule 403. This balancing test does not app Iy. though, under Rule 609(a)(2) Additionally, Rule 608 would permit the impeachment of the accused by specific instances of conduct. These instances are not admitted as substantive evidence, nor may they inferentially show the bad character of the accused Again. Rule 403 would require a balancing test before such impeachment is permitted Another method of impeachment af the accused would be through contradiction of the testimony of the accused brought out on direct examination, volunteered on cross-examination, or brought 0°C on cmsS-examinatmn The rules may vary depending upon whether the contradiction hm taken place on the ments or during the sentencing stage of the trial. Where the impeachment LS related to misconduct by the accused, the military judge should mtruct the court-members as to rhe purpose of the evidence. It may or ma? not be considered as substantive evidence.

   Rule 404(a) attempts to substantially change the former provision of the 1969 Manual for Courts-Martiai.B Under the latter, evidence of the accused's "general character" was admissible to demonstrate that it was less likely the accused committed the charged offense.lo Rule 404(a)(l) allows only evidence of a "pertinent trait of the character of the accused offered by the accused, or by the prosecution to rebut the same.''11

   11. CHARACTER OF THE ACCUSED

   Even though the defendant has a poor reputation in the community for a pertinent character trait, the prosecution may not introduce such evidence m the first instance,12 nor is there a presumption of good character.Ia Until the defendant introduces character evidence, the prosecution has nothing to rebut. The introduction of character evidence as circumstantial evidence of innocence is called "placing the defendant's character in issue." Because of the possibility of derogatory information being introduced by the prasecution, a tactical decision must be made by defense counsel as to the value of such evidence. What evidence might be introduced by the pme~ution7 What will be the impact of Impeachment? Rebuttal by the prosecution will be discussed later.

   Some might denigrate character evidence First, those who testify are usually family or friends of the accused. Those who know the accused will obviously try to help the accused. When penonaily asked to appear as a witness by the accused or defense counsel, such witnesses usually do not know the dangers of character evidence and indicate their willingness to help. Unless they are questioned in detail. their evidence may be negative when considered in light of the potential for rebuttal. Second, the premise of character evidence, "good individuals do not commit crimes" is tenuous Many of the most publicized crimes in the last few years have been committed by those who have fallen from high places Character evi- 'MII R EIid 4041~)and Analyri\

   "Manual far Courlr Martial 1969 (Rev ed 1 para 138 [herelnailer cited 8, MCM 14fiRI

   'MI1 R Ewd 4114(al[1)

   "MI] R E\id 404(a)(i) SIP alin United Stare? Y Tomehek. 4 hl J 66. 70 (C hl 9

   dence in the military may be more important, however, becaure the

   trol than the aierage citizen i(

   The accused places his character in issue when he testifies about his character or creates the inference that he is testifying abaut good character. In order to prevent the possibility of an inferenre of good character Lnadvertently being raised, the defense must properly prepare the accused to testify The tendency of the accused to try to help himself before thejury may lead an accused to go beyond direct examination and volunteer information of good character on either direct or cross examination.

   When the accused accidentally states a good opinion of himself defense counsel should seek permission from the military judge to have the testimony strike" from the record This will prwent the prosecution from introducing damaging rebutral evidence. a procedure that will be covered in the next section.

   Several cases are illustrative. In Weiss L.. United Slafes.le the ac- cused was charged with mail fraud. On direct examination. the accused attempted IO portray himself as an outstanding architect of unusual ability and repute, Implying that he would not have committed the acts charged The Fifth Circuit held that It was permissi~ ble for the prosecutor to cross-examine him about a contract to builda house which contract violated the canons of ethics of the hmer-m n Institute of Architects.

   SeNlce penon IS subJect to more ConStrUCtlve supervision and con-

   IW,)

   In United States v. Kindler," the accused, age 20, was convicted of assault with the intent to commit sodomy. During direct examination the accused testified that he was a "perfectly normal human being right now" and at the time of the alleged offense. He also testified on direct examination that, according to his religion, a homosexual act was a "sin,'' thus creating the implication he did not commit the act charged. Without setting forth the theory as rebuttal to character evidence or contradiction, the court held that it was proper for the prosecution to cross-examine the accused about homosexual activity that he had engaged in between the ages of twelve and fourteen. The court said that the ''rational tendency'' of the accused's testimony was that he did not commit the act charged."

   In Gnited States u. Donnelly,LBthe accused, in an unsworn statement during the sentencing stage, stated that he considered himself "a fairly responsible" mdmidual. The court held that this statement did not open the door for evidence of two uncharged drug offenses.

   It would seem that ruling of the Donnelly court was wrong. The accused's misconduct occurred while he was on duty as a security policeman in a controlled area. An individual involved with the use of drugs under such cmumstances would not be considered to be responsible. The court did not discuss this aSpect but indicated that the statement of the accused was given in the context of his family and his finances and not his duty performance. It would have been better had the trial counsel clarified this ambiguity Trial counsel could have asked: "What do you mean by 'responsible?"' "Does It mean responsible an and off-duty?" "Would It include not performing acts that would interfere with duty performance?" "Would you be responsible if you used drugs in a controlled areas?'' "Didn't you use drugs in a controlled area?"

   . .

   Because of the dangers of rebuttal, the defense may move for an order compelling the government to disclose the specific instances of conduct that it mtends to use in crowexamining defense character witnesses. Such a motion was made in United States L. Baskestg After the court denied the motion and the accused was convicted, he appealed, contending that he had been forced to withhold agnificant character testimony rather than risk impeachment by un-disclosed...