Character Evidence (relevance)

• Library: Objections Guidebook (2022 Ed.)

Character Evidence (Relevance)

Form of Objection

· Irrelevant · Immaterial · Insufficient foundation · Too remote in time

General Rule

· Proof of the existence of a character trait is generally not admissible as proof that the person engaged in conduct consistent with the trait. In general, this evidence is not relevant to the issues in the lawsuit. And the courts note that “evidence on the collateral issue of character . . . comes with too much dangerous baggage of prejudice, distraction from the issues, and surprise.” SeeState v. Goodwin, 43 S.W.3d 805 (Mo. banc 2001) (discussion of character evidence and racist attitudes); Haynam v. Laclede Elec. Coop., Inc., 827 S.W.2d 200, 205–07 (Mo. banc 1992) (contrast between reputation evidence to impeach and character evidence “substantive evidence”). As stated in Haynam, “substantive evidence” is generally limited to criminal cases. Id. at 205.

· But if character is an element of the claim, charge, or defense, it is admissible. State v. L. Hesselmeyer and M. Hesselmeyer, 123 S.W.2d 90, 96 (Mo. 1938) (character of the bawdyhouse was admissible); Williams v. Bailey, 759 S.W.2d 394, 396–97 (Mo. App. S.D. 1988) (citing Reynolds v. Jobes, 565 S.W.2d 690, 694 (Mo. App. W.D. 1978)) (generally the character of civil litigant is not subject to examination unless “put in issue by the nature of the proceeding, such as libel, slander, malicious prosecution, etc., where damage to character or reputation is an issue”; rejecting the claim that character evidence was admissible to prove that the “best driver” was operating the bus). Also, in a criminal case, if the “special negative defense” of justification is interjected into the case, then the reputation and character of the defendant and the victim may be an issue. See MAI-CR 4th 406.06 (2018) and its Notes on Use as to the initial aggressor and fear of imminent harm. The claim of justification makes it an element of the State’s charge.

· Missouri law is consistent with Federal Rule of Evidence 404(a)(2). There are exceptions to the exclusion of a character trait to prove on a particular occasion that a character trait was responsible for conduct. In criminal cases, a defendant may offer evidence of his or her “pertinent trait,” and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

· The exception for “substantive” character evidence is different than impeachment of a witness’s credibility. See Andrea Bell, Courtroom Handbook on Missouri Evidence, 33 Missouri Practice Series §608, pp. 251–58 (Thomson Reuters 2021) (cross-examination and use of extrinsic evidence to impeach witness’s character for truth and veracity); Mo. Evidence Restated §803, p. 468 (MoBar 6 ^th ed. 2021) (reputation as an exception to hearsay).

· If character is admissible, it may be established by reputation, opinion of a character witness, or specific instances of conduct. The admissibility of the evidence may depend on the “magic language” used to place the evidence in the “proper pigeonhole” between the two “different categories of reputation evidence [impeachment and proof of the kind of person the defendant is] that have completely diverse functions in a trial and are controlled by entirely different rules.” Haynam, 827 S.W.2d at 205–06 (quoted with approval in State v. Shockley, 410 S.W.3d 179, 191–94 (Mo. banc 2013) (character evidence “concerns a person’s reputation, such as whether someone in the defendant’s community views the defendant as a law-abiding...