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.
Character Evidence and its exceptions are described under Rule 404. It also offers exceptions.
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.
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 goes over the methods of proving Character Evidence.
Full Text: Rule 405. Methods of Proving Character
- 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.
- 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.
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
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.