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An Introduction to Character Evidence

September 17, 2018

The key to understanding the admissibility of evidence of character starts with an understanding of the difference between (1) character, (2) evidence of character, and (3) inadmissible evidence of character. Read carefully, and you will become one of that rare group of lawyers who actually understands this stuff.

Character

“Character” is relevant in our everyday lives. In fact, we consider it very important. Every one of us—every day—bases critical decisions on our perception of the character of other people. When young people consider personal questions such as dating, they rightfully want to know the character of the dating prospect. Certainly, when our children bring home a new boyfriend or girlfriend, we will be studying the new friend carefully to assess his or her character. When we consider professional decisions—such as whom to hire for an important position—we investigate the candidate’s character, because we consider this a reliable indicator of the person’s “propensity” to behave and perform well.

Character is important in our everyday lives!

We should pause here and consider “what is” a person’s character. This is not an easy definition to articulate. In fact, as the Seventh Circuit has stated,

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.’” … 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.

United States v. Doe, 149 F.3d 634, 638 (7th Cir. 1998) (emphasis added).

Let’s see how the authorities define it. According to McCormick on Evidence § 195 (6th ed. 2006),

Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness.

In Black’s Law Dictionary (10th ed. 2014), “character” is defined as,

The qualities that combine to make an individual human being distinctive from others, esp. as regards morality and behavior; the disposition, reputation, or collective traits of a person as they might be gathered from close observation of that person’s pattern of behavior.

That’s actually pretty clear.[1]I like how Black’s distinguishes the “collective traits” of a person’s character from evidence of that character by noting character “might be gathered from close observation of that person’s pattern of behavior.” “Character” is the traits that are shown by behavior—the “evidence.” That’s a good cue for us to move on to “evidence of character.”

Evidence of Character

“Character” for purposes of the study of its admissibility in evidence is better understood in terms of how we try to use it in trials. On this subject, I want to be emphatic in saying,

Character evidence is routinely—and properly—admitted in trials every day.

Consider this illustration. On Friday afternoon before a Monday jury trial, the client shows up to his lawyer’s office for trial preparation. The lawyer is appalled to see the client wearing jeans, flip-flops, and a raggedy shirt. “No,” the lawyer tells the client, “That will not do. On Monday, I want you to dress like the respectable person we want the jury to believe you are.” On Monday, the client shows up at the courthouse in a three-piece suit. “Well,” the lawyer tells the client, “that’s better, but you’re overdoing it. We want you to look respectable in a sincere way, not overstated or flashy.” When the client removes his vest and tie, and loosens his shirt, he looks the part. In giving these instructions, the lawyer is preparing to do what every good lawyer does—offer to the jury evidence that her client is a person of respectable character—understated, not flashy.

The trial lawyer’s legitimate effort to show her client to be a person of good character continues during her direct examination of the client. Because she wants the jury to think well of her client, she will tailor her questions to bring out background information that puts her client in a good light. “Tell us about your family.” And, “What is your role in your church?” In South Carolina where I live and work, The Citadel—also known as The Military College of South Carolina—is well-known (even among jurors) to place great emphasis on its honor code. Most juries are likely to have at least one member who knows that The Citadel honor code states, “A cadet does not lie, cheat, or steal, nor tolerate those who do.” So, good trial lawyers would hardly ever pass up an opportunity to connect their client to The Citadel if they can. If it’s not the Citadel, the lawyer will use something else in the client’s background to try to show the jury the client is a person of good character.

Good trial lawyers are keenly aware our character shows to others our propensity—what we are likely to do—and what we are likely not to do—so lawyers are constantly managing the message of character by showing what we have done, our reputation, and the opinion of others. Emerson might not have been the first to tell us,

What you do speaks so loudly I cannot hear what you are saying.

But he was teaching us the importance we place on the character of other people.

So, assuming evidence of character is relevant, it is admissible

except… in one narrow circumstance. That’s the next section.

Inadmissible Evidence of Character

That one narrow exception to the admissibility of relevant character evidence is found in Rule 404 of the Federal Rules of Evidence.

Rule 404. Character Evidence; Crimes or Other Acts

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

* * *

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

I want you to notice something critically important: Rule 404(a)(1) excludes character evidence only when the evidence is offered for the purpose of proving “that on a particular occasion the person acted in accordance with the character.” Go back and read the beginning of the rule again. The same is true of Rule 404(b)(1), which excludes evidence of crimes, wrongs, or other acts only when they are offered for the narrow purpose “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” As I explained in another post entitled “Why?” is a critical question in Evidence!, the purpose for which any evidence is offered is a key inquiry in determining its admissibility, especially for character evidence.

Conclusion

People use evidence of another person’s character as an important consideration in making decisions about our interactions with that person. Thus, we can see that a person’s character is almost always going to be relevant. Under the first four words of Rule 402—“Relevant evidence is admissible …”—evidence of a person’s character is coming into evidence unless some other Rule or provision of law gives the trial judge the authority to exclude it. Rule 404 grants that authority only in one narrow circumstance.

What is that circumstance? Propensity. Under Rule 404(a)(1) and (b)(1), the use of evidence of a person’s character to show a propensity to take action consistent with that character trait is the only “Prohibited Use” of the evidence.

However, if character evidence is offered for any other purpose, then Rule 404 has nothing to say about it, and if it’s relevant, it’s admissible.

The Supreme Court of the United States explained how it works in criminal cases,

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).

Here’s a quote I love, from a former law professor 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).

In criminal cases, there are exceptions to the “Prohibited Use,” but we’ll get to that another time. That’s as far as we’re going to go for now.

[1]When the Seventh Circuit wrote Doe, they must have been using an old edition of Black’s, like the fifth (1979) that I grew up with and that still sits on my shelf. The definition of character in that version was difficult. Things have gotten a lot better since Bryan Garner took over as editor of Black’s.

One Comment leave one →
  1. Jim Bannister permalink
    October 30, 2018 9:31 am

    For a defendant, Character evidence can be a stand alone reason for a jury to return a not guilty verdict. However, Courts often take the position that they can limit the “amount” of character evidence a defendant can introduce. One way to get in relevant evidence of character may be to break character down into smaller pieces than just good character in general. Obviously, each piece would need to be relevant, but why couldn’t you offer two witnesses for a defendant’s character for truthfullness, good morals, loyalty to his employer, charity, hard working, and conscientious.

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