Character Evidence: An In-Depth Guide

An Overview of Character Evidence

Character Evidence is when testimony or evidence is used against someone to prove their character personal traits.

For example, let’s say there was a case about a bank robbery and Character Evidence is used to say Mike robbed a convenience store in 2014. Since Mike robbed a convenience store in 2014, he could have robbed the bank. Does this make Mike guilty of robbing the bank? No

The reason why we have such rules is so that we do not prejudice the jury and piece together two facts. Just because Mike robbed a convenience store in 2014 does not make him guilty of robbing the bank.

The Character Evidence rules sit on two Articles of the Federal Rules of Evidence. The first being ARTICLE IV: RELEVANCE AND ITS LIMITS and ARTICLE VI: WITNESSES. The 400 level rules deal with Character Evidence and 600 level rules deal with Character Truthfulness. This article will go in-depth into these Character Evidence rules.

Rule 404 & Rule 405

These two rules deal with Character Evidence and the exceptions to them.

Rule 404

Character Evidence and its exceptions are described under Rule 404. It also offers exceptions.

Full Text: Rule 404. Character Evidence; Crimes or Other Acts

The Rules

Rule 404(a) – Evidence of a person’s character or character traits cannot be used as evidence. This type of evidence includes opinion and testimony of a person’s reputation.

Rule 404(b) – Evidence of a specific instance in time to prove a person’s character or character trait cannot be used as evidence. This type of evidence includes previous crimes or wrongdoings.

The Exceptions

Rules 404(a)(2) – These exceptions allow character evidence to be used in a criminal trial. However, these exceptions are only allowed in a criminal trial.

Rule 404(a)(2)(a) – This exception allows the prosecution to use character evidence to rebut the defendants use of character evidence if and only if the defense has used character evidence in their testimony.

Rule 404(a)(2)(b) – The use of this rule is limited by Rule 412 (Sexual Misconduct Cases). If the defendant offers character evidence of the victim and the evidence is admitted, the prosecution is allowed to: rebut that evidence and offer evidence that the defendant has a similar trait.

Rule 404(a)(2)(c) – This exception is only allowed in murder cases. This exception allows the prosecution to use Character Evidence to rebut the defendants evidence that the victim was the one who first aggressor or instigator.

Rule 404(b)(2) – These exceptions allow the use of previous crimes and wrongdoings to prove a person’s character. However, these exceptions can only be used in a criminal trial.

You can ONLY use this type of evidence to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

You also must perform the following: prosecution must provide notice of evidence being offered at trial, before trial or during trial if the court excuses pretrial

Rule 405

Rule 405 goes over the methods of proving Character Evidence.

Full Text: Rule 405. Methods of Proving Character

  1. Reputation or Opinion – When character evidence is admissible, you can use this method of proving a person’s character or character traits using opinion or reputation testimony. For example, Josh is known for being an angry person.
  2. Instance of Conduct  – When character evidence is admissible, you can use this method of proving a person’s character or character traits by using evidence of prior conduct. For example, Mike robbed a convenience store before.

However, the only instance of where Instance of Conduct is allowed is when the character trait being proved is an essential element of the case. This goes back to the 404(b)(2) where it says you can only use instance of conduct evidence to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. 

Rule 608 & Rule 609

These rules deal character truthfulness for Character Evidence.

Rule 608

Full Text: Rule 608. A Witness

Rule 608 says that a witnesses credibility may be supported or attacked using character evidence if they truthful or untruthful. However, you cannot immediately support a witnesses credibility. You can only support a witnesses credibility after their character has been attacked for truthfulness.

Part B of this rule has an exception that says you cannot use evidence related to Specific Instances of Conduct to attack or support the truthfulness of a witness. Of course, there are two exceptions to this rule part of the rule under Rule 609. These exceptions are:

(1) these specific instances of conduct are only allowed when they are subjects of a criminal conviction

(2) these specific instances of conduct can be talked about during cross-examination. However, the only people allowed to talk about these specific instances are the: (a) the witness himself; or (b) another witness that was mentioned by the witness himself

Rule 609

Full Text: Rule 609. Impeachment by Evidence of a Criminal Conviction

If you want to use evidence of a criminal conviction to attack a witnesses character for truthfulness, the evidence must be:

✅admitted for felony convictions

✅must be admitted for a dishonest crime (crimen falsi)

However, this is where it gets even more complicated. If you want to admit past felony convictions, you must meet the following requirements:

✅ felony convictions are only admissible when the probative value outweighs the prejudicial effect (Rule 403)

✅ felony convictions are only admissible against witnesses that are not the defendant

✅ if the conviction is more than 10 years old, it is only admissible when the probative value substantially outweighs the prejudicial effect (reverse Rule 403)

Therefore, this rule is only effective if you can meet the three requirements for the first requirement and can meet the second requirement. This would need to take some substantial planning if you want to use such a piece of evidence.

The three other exceptions are described as:

Rule 609(c) – If the convict is issued a pardon, certificate of rehabilitation or an equivalent procedure, the conviction evidence is inadmissible.

Rule 609(d) – This only applies to juvenile adjudications. If you’re confused, a juvenile adjudication is similar to an adult conviction without the same level of consequences. This rule says that evidence for a juvenile adjudication is only admissible when its adult-equivalent of a conviction would be admissible under this rule.

Rule 609(e) – This exception makes it clear that if a conviction is under appeal, it does not make the conviction evidence inadmissible.

Relevance: A Basic Explanation

Overview of Relevance

There are six important rules that cover the basis of “Relevance.” However, this article will only cover Rules 401, 402, and 403. The other rules, Rules 404, 405, and 406, will be covered in another article going over Character Evidence.

Rule 401 and Rule 402

These Relevance rules are very basic. The basic premise for relevance is that any evidence admitted must be relevant. The rules, Rule 401 and Rule 402, define whether evidence is admissible or inadmissible. Rule 401 goes over the definition of relevance. Rule 402 says irrelevant evidence is inadmissible.

Key Takeaways

  • Relevance is a very Low Bar – The court favors evidence to be admitted. Therefore, not much is needed to establish the relevance of the evidence being entered.
  • Rules 401 and 402 Work Together – Rule 401 is followed by 402. Therefore, both rules work together. Rule 401 goes over the definition of relevance. Rule 402 says irrelevant evidence is inadmissible.
  • Relevance is Dangerous – Relevance is a dangerous objection. This is because the side that brings up the relevance objection must substantially prove that the evidence being admitted is irrelevant. It also dangerous because it allows your opponent to explain their case-in-chief to the jury.

Rule 403

Rule 403 is an extremely useful objection because it allows you to exclude evidence. The basic wording of the rule allows the court to decide to exclude evidence if they believe it would be prejudice or unfair to the case.

The exact wording says:

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

However, there are a few catches to this objection.

  1. The evidence must be “substantially” or greatly unfair before it can be excluded.
  2. The rule is difficult to argue and win since the evidence must be “substantially” unfair.

The Balancing Equation (Prejudice vs. Probative)

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The reason why this rule is difficult to use is that the court favors evidence being admitted than excluded. Therefore, it must protect against the misuse of this rule.

The court uses a BALANCING test to determine if the evidence is prejudice or probative. The difference between prejudicial and probative evidence is:

  • Prejudicial Evidence – Evidence that greatly prejudices (a preconceived opinion that is not based on reason) the jury
  • Probative Evidence – Evidence that can establish a fact

Key Takeaways

  • Rule 403 is a very High Bar – Unlike Rule 401 and Rule 402, with Rule 403, you must be able to establish that the evidence is not prejudice to the jury.
  • Evidence must be Substantially Prejudice – Evidence must prejudice the jury. The court will perform a balancing test to determine if it should be excluded from the trial

Why Objection Capital is Crucial

Objection Capital is a new and somewhat complicated concept in Mock Trial. This is a skill that should only be used by expert Mock Trial teams. However, this skill doesn’t mean it can’t be applied to beginner teams, as well. It is one of the less important skills in Mock Trial but it is helpful when competing against other high-level teams.

What is Objection Capital and How is it Useful?

Objection Capital (noun) – The amount of useful objections you can make in a single Mock Trial round. The act of optimizing the use of objections in a case-in-chief.

Here are the reasons why Objection Capital is useful…

  • Reduce Wasted Time – If you make repeated objections, it ends up wasting time for everyone. Judges get bored when they hear the same repeated objections being made.
  • Boost Credibility – If you limit objections to parts of the trial where it makes sense (i.e. Powerful Evidence, Blatant Misuse of Rules of Evidence, etc.), you end showing that you know when it’s the right time to object and overall boosting your credibility as an attorney.
  • Keeping Jurors Interested – Objections often make jurors and judges lose track of the trial. Jurors and judges often become bored when they hear the same objections or objections with low value. If you limit the amount of objections you make to where its necessary, you can keep the jurors and judges interested and on pace with the case-in-chief.
  • Reduce the Chance of Error – You reduce the amount of times you can make an error. Objections can open a can of worms where you might make an error and decrease your overall credibility. Getting an objection wrong and overruled makes your team look less credible.

How to Implement Objection Capital

Only you and your team will know when it’s critical to make an objection and reduce useless objections. Look over your chase-in-chief, practice against other teams, and understand critical rules of evidence. Once you know the in’s and out’s of the Rules of Evidence, you will know where it’s a good time to make objections and argue your objection.

  • Study the Rules of Evidence – This is the important and underrated concept in Mock Trial. You MUST study the in’s and out’s of the Rules of Evidence. The Rules of Evidence is where you can really advance your skills in Mock Trial. Judges and jurors look for teams that know their Rules of Evidence and see them as being more credible.
  • Implement a Limit – If you place a limit per attorney, you can limit your objections. For example, each attorney can get 4 objections and emergency objections.