Character Evidence in the Civil Setting
| Citation | Vol. 26 No. 3 Pg. 0018 |
| Pages | 0018 |
| Publication year | 2020 |
Character Evidence in the Civil Setting
For guidance on the admissibility of character evidence, one must look to federal cases—particularly 11th Circuit decisions—and Georgia criminal cases. This article seeks to highlight relevant federal and Georgia case law and provide illustrations for the admissibility of such evidence.
BY HON. JANE MANNING
In a non-jury trial for negligent construction, plaintiff's counsel wants to present other dissatisfied customers of the contractor. Plaintiff's counsel refers to this as his "villagers with pitchforks" evidence.
In a personal injury suit stemming from a barroom brawl, plaintiff's counsel wants to show a video recording of the defendant punching another person at a hotel.
Jimmy, a fourth-grader, is hit in the head with a rock on the playground. He sues Tommy for throwing the rock. Jimmy's attorney moves to admit an incident that occurred three years later where the school suspended Tommy for throwing a rock.
As a trial judge, I made the decision whether to admit evidence of these other LU acts. All three cases involved character evidence as contemplated by O.C.G.A. I § 24-4-404.
The presumption set by O.C.G.A. § 24-4-404 is that character evidence is not admissible. O.C.G.A. § 24-4-404(a) states, "Evidence of a person's character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion." You might argue, "This evidence is gold! This evidence makes my case!" And I say, "Never fear, learned counsel. I have some tips for getting this kind of evidence admitted—and, alternatively, for keeping it out."
There are several ways to consider the admissibility of this type of evidence. Some trial lawyers immediately point to the Rule 403 balancing test.[1] This is premature. The Rule 403 balancing test is the final step in an admissibility analysis by a trial judge. Other lawyers immediately recognize this evidence as character evidence and engage in a Rule 404(b) analysis.[2] By rushing to a Rule 404(b) analysis, lawyers may overlook other vehicles for admission. Just like every out-of-court statement is not necessarily hearsay, neither is every other bad act necessarily character evidence. Before you get bogged down in a Rule 404(b) quagmire, you first need to establish whether the evidence is character evidence.
Where to Go for Help
Despite the plethora of opinions issued by the Georgia appellate courts on Rule 404 issues since the adoption of the 2013 Evidence Code (Evidence Code), no case has directly tackled character evidence in a civil case. The previous evidence code offers us little help. In the 25 years prior to the adoption of the 2013 Evidence Code, only one civil case addressed character evidence.[3] For guidance on the admissibility of this type of evidence, one must look to federal cases—particularly 11th Circuit decisions—and Georgia criminal cases.[4] This article seeks to highlight relevant federal and Georgia case law and provide illustrations for the admissibility of such evidence.
What Is and Is Not Character Evidence?
Remember, It Is Not Character Evidence If It Is Intrinsic to Your Case The statute does not prohibit intrinsic evidence which incidentally reveals a bad act.
Despite the plethora of opinions issued by the Georgia appellate courts on Rule 404 issues since the adoption of the 2013 Evidence Code, no case has directly tackled character evidence in a civil case.
The federal courts have long recognized that Rule 404(b) evidence is extrinsic.
"[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." As a prerequisite to Rule 404(b)'s application, a party must seek to exclude evidence extrinsic to the plaintiff's claim. Evidence is extrinsic if it involves an act wholly apart from and not intricately related to the asserted claim. Conversely, evidence is direct or intrinsic to the plaintiff's claim if it is part of the same tortious event.[5]
The Supreme Court of Georgia has also weighed in on whether evidence is intrinsic or extrinsic by stating, "Evidence is admissible as intrinsic evidence when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense."[6] The Court of Appeals of Georgia has acknowledged that the pre-2013 Evidence Code res gestae rule, which permitted admission of "all the acts and circumstances surrounding and constituting the res gestae" of a criminal act, was "carried forward to the new Evidence Code under the concept of 'intrinsic facts' evidence, as compared to evidence of 'extrinsic acts' which are generally inadmissible pursuant to O.C.G.A. § 24-4-404(b)."[7]
As you may already conclude, proximity in time may be important in determining whether the evidence is intrinsic. In Mosley v. State,[8] evidence of uncharged crimes that were part of a week-long crime spree were deemed to be intrinsic. Similarly, in Smith v. State,[9] evidence of an aborted robbery attempt two weeks earlier was admitted as intrinsic evidence. Even subsequent bad acts can be intrinsic according to the Court of Appeals of Georgia. Evidence of carjackings two days after the offense were deemed intrinsic.[10] However, a DEA recording of a defendant one month prior to arrest was ruled to extrinsic.[11] Temporal remoteness is not the only analysis that is needed, however.
Other bad act evidence may also be intrinsic if it relates to the parties' relationship. Under the previous evidence code, Georgia courts were liberal with the introduction of "prior difficulties between the parties," especially where domestic violence was alleged. "Prior difficulty" evidence was intrinsic to the case and not subject to pre-2013 similar transactions rules.[12] However, Georgia courts have been signaling a departure from previous case law and "prior difficulties" between the parties are no longer automatically admissible as intrinsic evidence. Currently in domestic violence cases, prior difficulties may be illustrative of "motive" where the parties' relationship was marked by control is-sues.[13] However, the Court of Appeals of Georgia found that in Williams v. State,[14] "Williams's HIV status and sexual assault of the victim's sister helped explain to the jury ... the increasing friction and conflict between the two that culminated in the crimes. ..."[15] The court found this evidence intrinsic.
A concept similar to res gestae or intrinsic evidence is course of conduct.
It Is Not Character Evidence If It Is Offered to Show Course of Conduct Federal courts have looked at whether evidence shows "course of conduct" when admitting other act evidence in civil cases. If the evidence shows course of conduct, a Rule 404(b) analysis is not necessary. For example, in Jemison v. Simmons [16]—an excessive force case— a prisoner was injured in the exercise yard after officers removed him from his flooded cell. The prisoner had no injuries when the officers escorted him to the exercise yard and left him shackled and unattended for hours. When the guards returned, he had bruises and welts on his body. The prisoner objected to evidence that he was not a model prisoner and had purposely flooded his cell before. The court ruled that the prisoner's prior behavioral problems were admissible. It found evidence that the prisoner purposefully flooded his cell was offered not to show propensity but to explain why the guards removed him from his cell.[17]
It Is Not Character Evidence If It Is Used for Impeachment O.C.G.A. § 24-4-404(a) allows admission of certain character evidence to impeach a witness. It states, "Evidence of a person's character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion, except for ... [e]vidence of the character of a witness, as provided in Code Sections 24-6-607, 24-6-608, and 24-6-609."[18] Those code sections, in turn, provide that any party may attack the credibility of a witness, a witness may be impeached by evidence of their reputation for untruthfulness and a witness may be impeached by evidence of certain criminal convictions.[19]
O.C.G.A. § 24-6-607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." The Evidence Code provides for impeachment of witnesses by several means. For example, a witness may be impeached by contradiction, by prior inconsistent statements or by evidence of bias.[20] O.C.G.A. § 24-4-404 does not limit the use of other act evidence if it is used for purposes of impeachment and is otherwise admissible.
Evidence of the witness's reputation for truthfulness or untruthfulness, which meets the requirements of O.C.G.A. § 246-608, is similarly not character evidence requiring a 404(b) analysis. "The credibility of a witness may be attacked or supported...
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