I have written for the American Bar Association (ABA) and other publications for more than 30 years. Most of my writing for the ABA has focused on technology and practice management, as I shied away from writing about substantive law outside of California, my home state, due to the fact that the rules differ from jurisdiction to jurisdiction. The space available for an article in the typical ABA publication precludes a detailed analysis of how each state and the federal government treat an issue, making it difficult to address for readers throughout the United States and beyond. I will limit this article to a general discussion of what constitutes character evidence and how and why an attorney might employ it in a trial. While some states utilize an analysis similar to that in the Federal Rules of Evidence (FRE), not all do. I will discuss attributes of the Federal Rules of Evidence as they apply to all federal cases throughout the United States but will not go into them in detail.
When I took the class on evidence in law school, my professor did not spend a great deal of time on character evidence. He left the impression that he thought little of that type of evidence and had more important things to teach us. The basic rule of character evidence then (and it has not changed dramatically) was that you cannot introduce prior bad acts or specific acts to prove a propensity toward a particular type of behavior; you can only introduce evidence of the party’s general reputation in the community for that character trait. That concept appeared somewhat counterintuitive to many in my class (I must admit that while I understood the rule, I, too, found it counterintuitive). It also appeared contrary to what many of my clients wished me to do at trial. In my own experience and from talking to other attorneys, clients often think we should introduce evidence of a party’s or a witness’s prior conduct to educate the trier of fact about the type of person the party/witness is, thereby ensuring that the trier of fact forms the same bad impression that they have of the opposing party or witness. The ability to convince the trier of fact of the opposing party’s mendacity (or pick a character trait, any trait, so long as it’s relevant to the proceeding) by bringing in witnesses to swear the opposing party lied has a certain compelling appeal to it. Logical appeal notwithstanding, prior bad acts rarely constitute admissible character evidence.
Character evidence generally refers to evidence about a particular character trait or traits demonstrated by a party or a witness. The term does not mean that one day, someone did something a particular way. It means this form of conduct represents a part of the essence or the DNA of a person; it is who they are. For example, someone regularly resorts to violence to make his point or get his way. The fact that someone had a bad day one day does not establish a character trait; the fact that this person acts this way most of the time might. Generally, people try to use character evidence to help them establish that a person has a propensity to act in a particular way (good or bad).
Note that character evidence and evidence of a habitual behavior, while often confused, are quite different. Habit references the course of conduct an individual regularly and repeatedly exhibits in the same or similar circumstances. We consider habitual conduct relatively predictable and more readily allow its admission to bolster a claim that someone did or did not act in a particular way in a given situation. The distinction has proven difficult. For example, does the fact that someone regularly drinks and drives constitute a habit or a character trait? We can make arguments either way. If we treat it as a habit, it is more likely to be admitted into evidence than if we treat it as a character trait. Evidence of habitual conduct generally gets treated as an exception to the rule that denies the admission of propensity evidence to prove conduct on a particular occasion. See FRE Rule 406, which states, in part, that:
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion, the person or organization acted in accordance with the habit or routine practice. . . .
When I left law school, I had the impression that courts rarely trusted character evidence. As you know, our evidence system uses the judge as the gatekeeper to keep improper evidence out and only admit evidence that is proper (relevant, properly presented, and in compliance with the applicable jurisdiction’s rules regulating admissibility). In my experience as a litigator, it seemed to me that many judges feel the need to guard the gate with particular vigilance regarding character evidence. Explanations usually focus on the possibility that the improper admission of character evidence or the improper admission of evidence cast as character evidence could unduly prejudice a jury.
Reading the framework for character evidence set out in the FRE, the structure appears to share that same perspective. Rule 404 sets out the basic regulation for the admissibility of character evidence in the federal courts. With a few exceptions, Rule 404 presents itself as a prohibition. It is worth noting that the FRE treatment of character evidence focuses on criminal prosecutions. More on that later.
Rule 404. Character Evidence; Other Crimes, Wrongs, or 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.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) OTHER CRIMES, WRONGS, OR ACTS.
(1) Prohibited Uses. Evidence of any other crime, wrong, or 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. . . .
FRE Rule 405 provides the means of proving character when it may properly come before the court. It does not in any way expand the availability of character evidence or its admissibility. Rule 405 states:
Rule 405. Methods of Proving Character
(a) BY REPUTATION OR OPINION. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) BY SPECIFIC INSTANCES OF CONDUCT. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
FRE Rule 608 addresses the admissibility of character evidence for impeachment, providing:
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
(a) REPUTATION OR OPINION EVIDENCE. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) SPECIFIC INSTANCES OF CONDUCT. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about. . . .
Traditionally, character evidence has much more limited availability in a civil case than in a criminal case. Generally, one cannot use character evidence to prove conduct in a civil matter. Character evidence can come in when the pleadings place the character trait at issue. The distinction between allegations of conduct in a particular instance or on a particular day and the character trait can become confusing. That someone got into a physical altercation on a particular day does not mean the same thing as someone regularly and often physically attacking people.
Character is a material issue in a relatively small handful of types of civil cases. For example, it may come up in a defamation case. Remember that in a defamation case, truth constitutes a defense. If the defendant has accused the plaintiff of a particular behavior that occurred on a single occasion, that does not put character at issue and does not properly open the door to the admission of character evidence to prove or disprove that the specified conduct occurred as alleged. If, however, the accusation relates to a continuing or recurring form of misconduct, it can bring the question of character into the case. For example, in a defamation case, the accusation that someone regularly sexually harasses women raises a different set of issues than an accusation that someone sexually harassed a particular woman at a specified time. In the latter case, character evidence should not come in, and the proof should go to the specific incident alleged. In the former, the allegation suggests what could be treated as a character trait and potentially opens the door to properly presented character evidence (e.g., reputation in the community as opposed to a prior bad act or acts).
As noted above, the FRE deal with character evidence primarily in the context of criminal trials. In addressing the question of the expansion of the use of character evidence in civil trials, the Advisory Committee Notes to Rule 404 emphasize a lack of confidence in character evidence. Citing the California Law Revision Commission, the Advisory Committee observed that:
Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.
In considering the aptness of the Advisory Committee’s conclusion, ask yourself just how persuasive you find most character evidence. If you sat on a jury, would general reputation testimony likely sway your opinion? Would you find it more enlightening to know that a particular individual did a particular type of act numerous times or that people generally seem to think that his inclination is to do such things? Remember that, generally, the former cannot come in, and the latter can. Consider the direct examination of the witness:
Attorney: Ms. Smith, are you acquainted with Mr. Jones?
Witness: No, I have never met the man.
Attorney: Have you ever heard of him?
Witness: Oh yes.
Attorney: Are you familiar with his reputation in the community regarding the character traits of truth and honesty?
Witness: Yes, I am.
Attorney: How did you become familiar with his reputation?
Witness: We both teach on the faculty at Podunk University, and I have often heard students, administrators, and other faculty members talking about Mr. Jones.
Attorney: Did you form an opinion of his reputation from those interactions?
Witness: Yes, I did.
Attorney: What is your understanding/opinion of Mr. Jones’s reputation in the community for the character traits of truth and honesty?
Witness: He has a terrible reputation for those traits. Everyone seems to think he is a scoundrel and a liar and that you should keep a close watch on your wallet when he is nearby.
Ironically, the consensus of attorneys seems to go the other way—that character evidence is possibly even more persuasive. Trial attorneys will likely go the extra mile to find a way to get character evidence in front of the jury on the theory that it will prove impactful.
Beyond the question of how much persuasive value such testimony carries with it, we have the question of how valid a predictor of action such testimony provides. A related question asks whether we can accurately identify (or even reasonably claim that we can) something as a person’s character trait without actual observation of the person in the moment and an evaluation of his or her reactions.
I spent my 50-year career as a litigator on the civil side of the bar. I handled a few criminal matters early in my career, but none went to trial. In my experience, litigators endeavor to introduce character evidence more often than the rules allow. I don’t know whether to attribute that to attorneys’ misunderstanding the rules regarding character evidence or their willingness to take a shot at pushing the envelope to satisfy a client’s demands, or both. Most of my interactions with character evidence related to keeping inappropriate offerings out; however, I did occasionally present character evidence to impeach a witness. Most of the problems I observed respecting character evidence came from a party trying to offer evidence of prior bad acts as “character evidence” when character evidence might arguably get admitted, or an attempt to convince the trier of fact that if someone behaved in a particular way once, he or she likely did it on other occasions as well, including the one at issue, when character evidence should not have come in at all.
A consideration of character evidence and its utility brings up some interesting questions that tend to support the judiciary’s wariness of admitting it into evidence.
We talk about reputation in the “community” in connection with character evidence, but we have no consistent definition of the applicable community. Does a college campus constitute a “community” in this sense? What about a company? What about a trade group (contractors, real estate brokers, etc.)? Do we need a larger community reference? Perhaps a city or a state? Generally, we have seen testimony accepted from reputation character witnesses who can show that they have belonged to the same residential, social, or business community as the subject, that the subject has a reputation for the particular trait within that community, and that they know of this reputation. Conversely, character witnesses testifying to their opinion need to show that they know the subject well enough to have formed a reliable opinion of the relevant character trait and that they actually have an opinion. Only then can they testify to their opinion.
Aside from any other concerns, reputation testimony most often comes in as hearsay or an opinion predicated on hearsay. Hearsay raises its own reliability issues. Nevertheless, when it comes to testimony about reputation, we appear willing to accept otherwise inadmissible hearsay.
I think that one of the most interesting issues respecting character evidence is the semantic/philosophical question of what exactly constitutes “character” or a “character trait.” I have seen many attempts to identify things as character traits that appear to stretch the envelope quite a bit. The laws and rules offer little help in determining what constitutes a character trait. Note that the FRE do not mention this. Neither do they make any attempt to define the term. They just seem to assume that everyone knows what constitutes a character trait. I have found some functional definitions with overlapping commonalities but nothing approaching a universal definition of character or a character trait in the context of character evidence.
A lengthy discussion of the question of what constitutes “character” or a “character trait” in the context of character evidence exceeds the scope of this article. For those who may find the topic interesting, I discovered an excellent note that addresses that subject by Barrett J. Anderson. The Yale Law Journal published Mr. Anderson’s note in 2012, but it remains current in its perspective. I commend it to you if you wish to enhance your understanding of this aspect of character evidence.
