Character evidence

In the majority of U.S. jurisdictions, character evidence is inadmissible in civil suits when being used as circumstantial evidence to prove that a person acted in conformity with their character; it is considered to be an unfair basis from which to attempt to prove that an individual behaved in a particular way on a particular occasion.[2] Another way of looking at this is that character evidence is only admissible in a majority of jurisdictions in a civil trial if character is actually a substantive issue in the case (negligent hiring; negligent entrustment, child custody cases, loss of consortium cases), or to impeach a witness.

A minority of U.S. jurisdictions, however, permit defendants in assault and battery and fraudulent misconduct civil cases to introduce character evidence as circumstantial evidence to prove that a person acted in conformity with their character.[3]

In the United States, character evidence is inadmissible in a criminal trial if first offered by the prosecution as circumstantial evidence to show that a defendant is likely to have committed the crime with which he or she is charged—the prosecution may not, in other words, initiate character evidence that shows defendant's propensity to commit a crime. However the prosecution may introduce character evidence for certain limited purposes after the defendant does so—after the defendant has "opened the door"—through the permissible methods and purposes explained below in "Character evidence offered by the defendant," to rebut what defendant tried showing through character evidence, and to "offer evidence of the defendant's same trait."[4]

FRE 404, in addition to dictating character evidence's permissible use in federal courts, also bars the prosecution's admission of "crimes, wrongs, or other acts"[5] to prove the character of a person in order to show action in conformity therewith (propensity). Evidence of other crimes, wrongs or acts is available for "non-character purposes," such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal prosecution, the defendant can request to receive notice of this type of evidence if the prosecution intends to admit it at trial. [6]

• Note that under California Evidence Code ("CEC") §1101(b), in addition to proving MIMIC elements, the prosecution may admit evidence of a victim's prior sexual conduct in a case brought for an unlawful sexual act or attempted unlawful sexual act, to show that the defendant "did not reasonably and in good faith believe that the victim consented."[7]

Character evidence is admissible in a criminal trial if offered by a defendant as circumstantial evidence—through reputation or opinion evidence—to show their own character, as long as the character evidence the defendant seeks to introduce is relevant to the crime with which the defendant is charged.[8] For example, if a defendant is charged with a crime involving dishonesty, defendant may introduce evidence tending to show defendant's honest character. If defendant is charged with a violent crime, defendant may introduce evidence tending to show defendant's peaceful character.

• Note that under CEC §1102, a defendant may not only introduce evidence of "a trait of his character" that is relevant to the crime with which he or she is charged, but may also introduce character evidence "of the defendant's character" generally.[9]

Character evidence is also admissible in a criminal trial if offered by a defendant as circumstantial evidence—through reputation or opinion evidence—to show an alleged victim's "pertinent" character trait—for example, to support defendant's claim of self-defense to a charge of homicide.[10]

After a criminal defendant introduces evidence of the victim's character, the prosecution may then introduce its own character evidence to rebut the defendant's character evidence by showing its side's impression of the victim's character, or to attack the character of the defendant through evidence that shows that defendant had the same character trait he or she accused the victim of having.[11]

• Note that under CEC §1103(a), a defendant may not only introduce evidence of a victim's character or character trait through reputation or opinion evidence, as permitted under FRE 404, but also through evidence of specific acts. [12]

The admissibility of character evidence to allow defendant to prove the character trait of a victim is limited, however, if the lawsuit is for rape or assault with the intent to commit rape. If the reputation or opinion evidence is being offered by the defendant to show the rape victim's past sexual conduct, character evidence is inadmissible. [13] In such sexual misconduct cases, a defendant may offer "evidence of specific instances of a victim’s sexual behavior" only to show that someone other than the defendant was the source of "semen, injury, or other physical evidence," or to show that the victim had consented to sexual behavior with the defendant.

• Note that under CEC §1103(c)(1), reputation, opinion, and specific acts evidence are all barred if defendant seeks to introduce the evidence to show the sexual character of the victim, but evidence of the victim's sexual conduct with the defendant—i.e. specific acts—may be used by defendant to show that the victim consented to the sexual act.[14]