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An Introduction to Character Evidence

June 9, 2011

Think back to June 1 when I posted “Thinking Through the Structure of Evidence,” and remember the question “what is it?”  Sometimes after we have determined evidence to be relevant, we ask that critical question “what is it?” and decide that it might be character evidence.  Andre Tufts tried to get the trial judge to find that his “I know I have a problem with my sexual desires” comment was character evidence, but the judge wouldn’t go for it.  In other instances, judges can be convinced.  So, let’s talk about it!  We’ll define character evidence in a minute, but I want to start by putting this thought on the table:

“Character” evidence is relevant!  It’s what everyone wants to know!  Every day, we base important decisions in our lives on our perception of the character of other people.  When young people consider personal questions such as dating, they rightfully want to know the prospect’s character.  When we who are more seasoned consider professional decisions such as hiring, we investigate how the person has performed in the past.  We want to know, before making each of these important decisions, what is this person’s “propensity” for future behavior?

Many times this summer you will hear me refer to this as “cocktail party talk.”  As you go through law school and beyond, you will stand around at cocktail parties and your friends will want to hear your stories about law.  Inevitably, someone will ask “well, has he done it before?”  The only time that won’t happen is when you tell them before they ask.  In trials, however, character evidence is generally not allowed.  The rule that excludes it begins as follows:

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally.—Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion …

I want you to notice something important: Rule 404(a) excludes character evidence only when offered “for the purpose of proving action in conformity” with a trait of character.  Go back and read the beginning of the rule again.  The same is true of Rule 404(b), which excludes evidence of other crimes, wrongs or acts only when offered “to prove the character of a person in order to show action in conformity therewith.”  Yesterday’s blog was “’Why’ is a critical question in Evidence!”  Read it again after we spend some time on character.

So, what is character evidence?  Let’s see what the authorities say.  McCormick defines “character” as “a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness.”  McCormick on Evidence § 195 (6th ed. 2006).  In Black’s Law Dictionary (5th ed. 1979), “character” is defined as follows:

The aggregate of the moral qualities which belong to and distinguish an individual person; the general result of the one’s distinguishing attributes.  That moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him.  A person’s fixed disposition or tendency, as evidenced to others by his habits of life, through the manifestation of which his general reputation for the possession of a character, good or otherwise, is obtained.  …  Although “character” and “reputation” are often used synonymously, the terms are distinguishable.  “Character” is what a man is, and “reputation” is what he is supposed to be in what people say he is.  “Character” depends on attributes possessed, and “reputation” on attributes which others believe one to possess.  The former signifies reality and the latter merely what is accepted to be reality at present.

Okay, that was terrible; so … forget Black’s.  Actually, the difficulty of articulating a precise definition of “character evidence” was noted in United States v. Doe, 149 F.3d 634, 638 (7th Cir. 1998):

We doubt that a fully satisfactory, comprehensive definition of “character evidence” is possible, but we have stated that “‘[c]haracter trait’ refers to elements of one’s disposition, ‘such as honesty, temperance, or peacefulness.’” (I omitted a citation) . . .  Thus, character evidence typically involves personality traits, such as diligence, aggressiveness, honesty, and the like, that create a propensity for acting in certain ways under certain conditions.  (I added the emphasis).

Doe brings us back to the idea of “propensity,” a term often used to explain the rules of character evidence.  In criminal cases for example, the rules prevents a defendant from being found guilty simply because of his propensity to commit similar crimes. 

Courts … almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt.  …  The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. 

Michelson v. United States, 335 U.S. 469, 475 (1948).  (see your book on page 245)

Here’s a quote I love, from one of our own here in South Carolina:

It is in criminal cases that the law must be the most sternly on guard against allowing the doing of an act to be proved by a propensity to do it.

James F. Dreher, A Guide to Evidence Law in South Carolina 35 (South Carolina Bar 1967).

We’re studying character evidence now at the beginning of the course because we want to learn how to think about evidence struggles.  The challenges associated with character evidence give us a great opportunity to practice that thinking.  The first question we always ask in any evidence struggle is whether the evidence is relevant.  If the answer is “yes,” which it almost always will be for evidence of a person’s character, we next ask “what is it?”  In the course of thinking through the answer to that question, and deciding whether it is character evidence that is excluded by Rule 404, we ask the critical question “why is it being offered?”  If the answers to the “what is it and why” questions fit the prohibition of Rule 404(a) or (b), then it’s offered to prove propensity, and therefore not admissible; at least not yet.  That’s as far as we’re going to go for now.  The party who wants the evidence in might still be able to accomplish it, but we’re not going to study that right now.  We’ll come back to that part of character evidence when we begin to focus on “foundation.”

It’s a Thursday in Charleston, South Carolina!  What more could we want?  See you shortly.

One Comment leave one →
  1. July 1, 2011 12:45 pm

    I would encourage, perhaps require, everyone in the class to read People v. Molineaux, 61 N.E. 286 (N.Y. 1901). For a long time, it was the seminal case on Character evidence and is cited several times in our own state’s seminal case: Lyles. Plus, its just a good story.
    Molineaux allegedly kills two people with cyanide of mercury poisoning. It involves the Knickerbocker athletic club and raises intriguing questions about Miss. Cheesborough and her various associations with Molineaux and one of the deceased. It also has a good history of the origin of the exclusion of propensity evidence and why our choice to do so is better than other nations that do not.

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