CHARACTER EVIDENCE

1
CHARACTER EVIDENCE

• The Interplay Between Rules of Evidence 404(a),
  405, 608, 611
• Catherine C. Eagles
• Resident Superior Court Judge
• October 2003

2
What is Character Evidence?

• Rule 404(a)
• Evidence of a persons character
• or a trait of his character offered for
• the purpose of proving that he acted in
• conformity therewith on a particular
• occasion.

3
What is Character Evidence?

• Evidence of REPUTATION
• Evidence of OPINION
• Evidence of ACTIONS
• Offered to prove the person acted in conformity
  therewith that you are a peaceful gal or a
  violent gal, a law-abiding guy or a criminal, a
  truthful guy or a lying guy - AND that you acted
  in conformity therewith on the occasion at
  issue.

4
What isnt Character Evidence?

• Evidence offered to prove state of mind.
• Hes a bully, I knew it everyone knew it, and I
  was afraid of him
• Evidence offered to prove intent, motive, plan,
  identity, etc.
• 404(b) evidence.

5
What isnt Character Evidence?

• Evidence offered to show the circumstances
  surrounding event at issue.
• The room in Ds house where victims body found
  is also full of drug paraphernalia.
• Evidence offered to show the witness couldnt
  accurately perceive or remember.
• Witness drunk at the time of the relevant
  incident and thus cant accurately perceive and
  remember what happened.

6
If it isnt character evidence,

• You get to forget about the character evidence
  rules.
• You can rely on Rule 401(if its relevant, let it
  in) and Rule 403, and possibly Rule 404(b).

7
What is Character Evidence?

• Evidence offered substantively
• X is a drug-dealer and thus is guilty of this
  drug offense
• X is a violent person and thus is guilty of this
  assault
• X is a law-abiding person and thus X couldnt
  have committed this crime.

8
What is Character Evidence?

• Evidence offered re credibility
• X always tell the truth and therefore X is
  telling the jury the truth in his testimony.
• X lied once before about something else and
  therefore the jury shouldnt believe X.
• Evidence admissible re credibility but offered
  in fact to make the jury think badly of witness
• X has been convicted of previous crimes
• X has lied many times before

9
CHARACTER EVIDENCE

• The general rule Character evidence is not
  admissible.
• Rule 404(a) Evidence of a persons character or
  a trait of his character is not admissible for
  the purpose of proving that he acted in
  conformity therewith on a particular occasion,
  except

10
Three exceptions.

• Character of accused, if pertinent offered by
  accused or by prosecution to rebut.
• Character of victim, if either
• pertinent offered by accused or by prosecution
  to rebut, or
• D offers evidence V aggressor, then State can
  offer evidence of victims character for
  peaceableness
• Character of witness as provided in Rule 607,
  608, 609.

11
CHARACTER OF CRIMINAL DEFENDANT

• Rule 404(a) Evidence of a persons character .
  . . is not admissible for the purpose of proving
  that he acted in conformity therewith on a
  particular occasion, except (1) evidence of a
  pertinent trait of his character offered by an
  accused. . .

12
Character of Criminal Defendant

• Rule 404(a)(1) says the accused can offer
  evidence of a pertinent trait of his character.
• The accused means a defendant in a criminal case.
• What is a pertinent character trait?

13
Character for generally a good guy vs. being
law-abiding

• State v. Squire, 321 N.C. 541(1988)
• In homicide case, judge excluded evidence of Ds
  character traits other than peacefulness and
  truthfulness. Error. Evidence of general good
  character is not admissible under Rule 404(a),
  but D is entitled to offer evidence of any
  pertinent character trait. Pertinent means
  "relevant," and what is relevant depends on the
  circumstances of a particular case.

14
Character for generally a good guy vs. being
law-abiding

• Being law-abiding is always relevant in a
  criminal case.
• State v. Squire, 321 N.C. 541(1988)

15
So under Squires,

• Defendant is a good guy and therefore could not
  have committed this crime.
• NOT ADMISSIBLE

• Defendant is a law-abiding guy and therefore
  could not have committed this crime.
• ADMISSIBLE

16
Other character traits that are likely to be
pertinent as to a criminal defendant

• Peacefulness - if crime is one of violence
• Honesty - if crime is one that involves criminal
  intent or deceit

• Truthfulness - if crime is one that involves
  deceit or if defendant testifies
• Abstinence - if crime is one that involves drug
  or alcohol use

17
Inadmissible Character Traits Too General

• The defendant is well-thought of in his
  community.
• The defendant is a good man.
• The defendant has a wonderful reputation.
• The defendant is a pillar of the community.

18
Effect of Admissible Good Character Evidence is

• SUBSTANTIVE EVIDENCE OF INNOCENCE.
• Defendant entitled to an instruction to that
  effect if he asks.
• State v. Bogle, 324 NC 190 (1989)
• Note OK to limit the number of character
  witnesses. State v. McCray, 312 NC 519 (1985)

19
Character for not being a pedophile

• State v. Wagoner, 131 N.C.App. 285 (1998).
• In child sex abuse case, trial court did not err
  in excluding defense expert testimony that
  defendant had no mental illness, had no substance
  abuse problems, and was not a high-risk sex
  offender.
• This is general character evidence not relevant
  to a pertinent character trait and therefore not
  admissible under Rule 404(a).

20
Character for not profaning moms name

• State v. Powell, 340 N.C. 674 (1995)
• In homicide case, State presented evidence that
  D's brother asked D to swear on his mother's
  grave "that he did not commit a murder" but the D
  would not. Then D offered testimony of his wife
  that D loved his mother and in her opinion "would
  never swear or profane her name".
• Error to exclude this, because it was relevant
  character evidence to rebut the implication in
  the State's evidence that the failure to so swear
  was evidence of guilt. Rule 404(a).

21
Defendants character

• If defendant offers character evidence, then the
  state is entitled to rebut the same.
• Rule 404(a)(1) allows reputation evidence in
  rebuttal, and
• Rule 405 allows c/e of character witness about
  specific instances of conduct

22
Defendants character

• State v. Cummings, 332 N.C. 487 (1992)(ok to c/e
  defense character witnesses for peacefulness
  about Ds 20-year-old assault conviction).
• State v. Hargett, 577 S.E.2d 703 (N.C. App.
  2003)(ok to c/e defense character witness trait
  not specified - about Ds convictions for BE,
  larceny and PSG).

23
Defendants character

• Rule 404 says The State cannot offer character
  evidence about the defendant to show that he
  acted in conformity with his character.
• E.g., State v Williams, ___ NCApp ___ , 577 SE2d
  143 (2003)
• The only relevance of the testimony of
  defendants prior drug deals was to illustrate
  defendant's predisposition toward drug
  violations. New trial.

24
Defendants character

• So General Rule
• State cannot offer character evidence about the
  defendant.

25
Repeat after me.

• The general rule is
• The State cannot offer character evidence about
  the defendant.

26
Summary Defendants character

• State cannot offer character evidence about the
  defendant in States case in chief.
• Defendant can offer reputation/opinion evidence
  about his own character if the trait is
  pertinent.
• If defendant offers character evidence, state can
  rebut it through cross-examination about specific
  incidents of conduct and through affirmative
  reputation/opinion evidence to the contrary.

27
Character of victim

• Rule 404(a) still applies no character evidence
  for substantive purposes.
• But two exceptions for victims
• Rule 404(a)(2) Defense may offer evidence of a
  pertinent character trait of the victim state
  may rebut.
• Rule 404(a)(2) If defense offers evidence in
  murder case that victim was aggressor, State may
  offer evidence on rebuttal of victims character
  for peacefulness. State v. Johnson, 344 NC 596
  (1996)
• Note Rule 412

28
Whats pertinent about a victim?

• To be pertinent, a character trait of the victim
  must bear a relationship to the crime with which
  the defendant is charged.
• State v. Sexton, 336 NC 321 (1994)

29
Whats pertinent about a victim?

• Character/reputation for being violent to show
  Victim was aggressor when defendant asserts
  self-defense. State v. Watson, 338 NC 168.
• Even if defendant not aware of Victims character
• But not Vs specific prior violent acts. State v.
  Smith, 337 NC 658. Why not? Specifically
  excluded under 404(b).
• but if D knew, could be relevant to Ds state of
  mind.

30
Whats pertinent about the victim?

• State v. Laws, 345 N.C. 585 (1997).
• In a homicide case, the trial court correctly
  barred Defendant from presenting evidence that
  the victim had a reputation as a homosexual in
  support of his claim of self-defense from a
  homosexual assault. An individuals sexual
  orientation bears no relationship to the
  likelihood of threatening a sexual assault and
  thus is not pertinent under Rule 404(a).

31
Whats pertinent about the victim?

• State v. Goodson, 341 N.C. 619 (1995).
• In a homicide case where the defense was
  accident, the trial court correctly prevented the
  defendant from presenting testimony of the
  victim's reputation for violence. This type of
  evidence is not a pertinent character trait under
  Rule 404(a)(2) when the defense is accident.

32
Whats pertinent about the victim?

• In rape case, Victims character for
  drunkenness is not pertinent. It has no
  tendency to prove victim consented to sexual
  activity.
• State v. Cronan, 100 N.C.App. 641 (1990)

33
States evidence about victims character

• State v. Jennings, 333 N.C. 579 (1993).
• In homicide case, trial court correctly allowed
  the State to offer evidence on rebuttal that the
  victim was a gentleman, humble, and not violent,
  after the Defendant offered evidence that the
  victim suffered from dementia. This character
  evidence was rebuttal for the defense evidence
  that victim was demented and dangerous. It was
  pertinent and admissible under Rule 404(a)(2).

34
States evidence about victims character

• State v. Sexton, 336 NC 321(1994)
• Where defendant in murder/rape case testified
  that victim consented to sex and wanted to be
  unfaithful to her husband, trial court did not
  err in allowing states rebuttal evidence
  concerning victims reputation for fidelity to
  her husband. Rule 404(a)(2). Also discusses.
  Rule 412.

35
States evidence about victims character

• But where defense does not offer evidence about
  the victims character, it is error to allow
  prosecution to offer evidence that the victim had
  a good reputation in the community.
• State v. Quick, 329 NC 1 (1991) State v. Jones,
  137 N.C.App 221 (2000).

36
Summary Victims character

• State cannot offer character evidence about the
  victim in case in chief.
• Defendant can offer reputation/opinion evidence
  about victims character if the trait is
  pertinent.
• And then State can rebut.
• If defendant offers evidence victim was
  aggressor, state can rebut with character
  evidence about victims peacefulness.

37
Back to Rule 404(a)s 3 exceptions to the No
character evidence rule

• 1. Character of Accused
• 2. Character of Victim
• 3. Character of Witness
• Evidence of a persons character . . not
  admissible . . .except (3) evidence of the
  character of a witness as provided in Rules 607,
  608, and 609.

38
Character of Witnesses

• Rules 607, 608 and 609
• Focus is on credibility
• If a party is a witness, then Rules 607, 608 and
  609 apply to his/her testimony as well.

39
Character of Witnesses Rules 607 609

• Rule 607 Any party may attack the credibility of
  a witness including the party who called him to
  testify
• Rule 609 Cross-examining a witness about the
  witnesss criminal convictions.
• See manuscript.

40
Character of Witnesses Rule 608

• Rule 608(a) Credibility of a witness may be
  attacked or supported by evidence in the form of
  reputation or opinion only as to character for
  truthfulness or untruthfulness and only after
  credibility has been attacked.

• Rule 608(b) Specific instances of witness
  conduct may not be proved by extrinsic evidence,
  even if relevant to credibility, but may in
  courts discretion be inquired into on c/e if
  they concern character for truthfulness or
  untruthfulness.

41
Character of Witnesses

• So the character of a witness is inadmissible and
  cant be gone into except as it relates to
  character for truthfulness or untruthfulness
  i.e., credibility
• This applies to good character and bad character.
• Why? Collateral, consumes unreasonable amount
  of time, distracts jury from the real issues,
  leads to acrimonious disputes. State v. Johnson,
  82 NC 589 (1880)

42
Credibility of a Witness Reputation Opinion
Testimony

• Rule 608(a) Credibility of a witness may be
  attacked or supported by evidence in the form of
  reputation or opinion only as to character for
  truthfulness or untruthfulness and only after
  credibility has been attacked.

43
Credibility of a Witness Reputation Opinion
Testimony

• State v. Jones, 342 N.C. 457 (1996).
• In homicide case, key witness against D was his
  former girlfriend. Girlfriends credibility was
  challenged on cross-examination. Police officer
  then correctly allowed to give his opinion about
  the credibility of the girlfriend. Rule 608(a).
• Not his opinion that she is telling the truth,
  but rather his opinion that she is a truthful
  person.

44
Credibility of a Witness Reputation Opinion
Testimony

• State v. Marecek, 152 N.C.App. 479 (2002).
• In murder trial, court erred in excluding defense
  evidence of opinion testimony re Ds character
  for truthfulness.
• Even though D did not testify, his version of
  events was before the jury and his character for
  truthfulness was impugned by the States
  introduction of both Ds exculpatory written
  statement to the police and evidence contrary to
  that statement. Rule 608(a).

45
Credibility of a Witness Reputation Opinion
Testimony

• State v. Penland, 343 N.C. 634 (1996).
• In homicide case, State allowed on rebuttal to
  ask sixth-grade teacher of the Defendant's
  testifying accomplices about their reputation for
  truthfulness when in her class six years earlier.
  Defendant had earlier offered character evidence
  that the co-defendants had bad reputations for
  truthfulness and veracity, so State could rebut.

46
Summary Reputation of Witness

• Only relevant character trait of a witness is
  truthfulness or untruthfulness
• Opinion/Reputation evidence can be offered only
  after credibility attacked.
• Opinion/Reputation evidence can support
  credibility or attack credibility

47
Turning to 608(b)

• Rule 608(b) Specific instances of witness
  conduct may not be proved by extrinsic evidence,
  even if relevant to credibility, but may in
  courts discretion be inquired into on c/e if
  they concern character for truthfulness or
  untruthfulness.

• Can be character of the testifying witness for
  truthfulness, 608(b)(1),or character of some
  other witness for truthfulness if testifying
  witness expresses opinion about that witnesss
  character, 608(b)(2).

48
Witness Credibility Specific Instances of
Testifying Witness Conduct

• State v. Baldwin, 125 N.C. App. 530 (1997).
• In a homicide case, State offered Ds confession
  to Detective X. Trial court then erred in
  preventing the defense from cross-examining
  Detective X concerning his use of deceit in
  another case two years before to gain a
  confession. This evidence was admissible under
  Rule 608(b) because it was probative of the
  detectives character for untruthfulness.

49
Witness Credibility Specific Instances of
Testifying Witness Conduct

• State v. Stevenson, 328 N.C. 542 (1991).
• In a homicide case, error to allow the State to
  cross-examine D concerning use of marijuana and
  assaultive conduct, matters not resulting in
  conviction. The State cannot cross-examine
  concerning specific acts of misconduct to impeach
  the truthfulness of a witness unless the
  incidents relate to veracity under Rule 608(b).

50
Witness Credibility Specific Instances of
Testifying Witness Conduct

• State v. Taylor, ___N.C.App. ___ (2002).
• Cross-examination of defendant concerning his
  alleged sale of marijuana to his neighbor was
  not relevant to his veracity as a witness and
  should have been excluded because it was not
  probative of defendants truthfulness in this
  case. Rule 608(b).

51
Witness Credibility Specific Instances of
Testifying Witness Conduct

• State v. Woodard, 102 N.C. App. 687 (1991).
• In B/E and sexual offense case, the State
  cross-examined Defendant with letters concerning
  an adulterous affair with a woman (not the
  victim).
• This was error. Adultery is not conduct
  pertinent to truthfulness or untruthfulness under
  Rule 608(b), nor was it admissible under
  404(a)(1) because D had not put his character at
  issue.

52
Credibility of another WitnessRule 608(b)(2)

• State v. Baymon, 336 N.C. 748 (1994)
• In child sex offense case, trial court erred in
  allowing states witness (victims teacher) to
  testify about specific instances of the victims
  truthfulness on direct.
• Victims credibility is not an essential element
  of the charge under Rule 405(b) and so specific
  instances of conduct are inadmissible.
• Rule 608(b) doesnt help the State specific
  instances admissible only on cross-examination.

53
Credibility of another WitnessRule 608(b)(2)

• State v. Call, 349 N.C. 383 (1999)
• Trial court correctly sustained objections to
  questions to LEO about whether another witness
  had been the subject of domestic violence
  complaints.
• This evidence has no bearing on truthfulness or
  untruthfulness.

54
Credibility of another WitnessRule 608(b)(2)

• State v. Dickens, 346 N.C. 26 (1997)
• Trial court correctly sustained objections to
  defense testimony about previous violent acts of
  testifying co-defendant, because extrinsic
  instances of assaultive behavior, standing alone,
  are not in any way probative of a witness
  character for truthfulness or untruthfulness.
• Rule 608(b).

55
4 Prerequisites to 608(b) evidence Morgan 315 NC
626

• The purpose of producing the evidence is to
  impeach or enhance credibility by proving that
  the conduct indicates Ws character for
  truthfulness or untruthfulness
• The conduct in question is in fact probative of
  truthfulness or untruthfulness
• The conduct in question did not result in
  conviction
• The inquiry into the conduct takes place on
  cross-examination

56
Extrinsic Evidence

• Rule 608(b) Specific instances of the conduct
  of a witness for the purpose of attacking or
  supporting his credibility may not be proved by
  extrinsic evidence. They may, however, in the
  discretion of the court, if probative of
  truthfulness or untruthfulness, be inquired into
  on C/E concerning his own truthfulness or the
  truthfulness of another testifying witness as to
  which character the witness being c/e has
  testified.

57
Extrinsic evidence

• General Rule No extrinsic evidence
• State v. Walls, 342 N.C. 1 (1995)
• But specific instances may be inquired into on
  Cross-Examination in discretion of trial court,
  under some circumstances.

58
Extrinsic Evidence

• State v. Walls, 342 N.C. 1 (1995) Homicide
• Trial court correctly sustained objections to
  defense questions on c/e of police witness
  concerning his knowledge of complaints about
  another witness's police work to attack that
  other witness's truthfulness.
• Police witness had not offered opinion about
  other witnesss truthfulness.

59
Extrinsic Evidence

• State v. Walls, 342 N.C. 1 (1995) Homicide
• Rule 608(b) precludes extrinsic evidence about
  specific instances of a witnesss conduct, and
  allows c/e about specific instances only when the
  specific instances relate to truthfulness and the
  testifying witness has offered an opinion about
  the other witnesss reputation for truthfulness.

60
C/E of Witnesses re Specific Acts

• Even when the cross-examination of a witness IS
  about specific acts relevant to credibility, it
  is IN THE TRIAL COURTS DISCRETION.
• You can let it in or keep it out, depending on
  what seems fair in the circumstances.
• Ferebee v. Hardison, 126 N.C.App. 230 (1997) (ok
  to preclude c/e of party witness re dishonest
  acts committed when party/witness was a juvenile)

61
Summary Specific Acts of Witness

• No extrinsic evidence about Specific Instances of
  Conduct (SIC) of a Witness.
• Cross-examination about SIC ok if the acts relate
  to truthfulness or untruthfulness of the
  testifying witness, in courts discretion
• Cant call a witness to testify on direct about
  another witnesss SIC even if related to
  truthfulness can only be gone into on cross if
  the witness offers an opinion about truthfulness.

62
Offering Substantive Reputation Evidence

• Rule 405(a) In all cases in which evidence of
  character or a trait of character of a person is
  admissible, proof may be made by testimony as to
  reputation or by testimony in the form of an
  opinion.
• On C/E, inquiry is allowable into relevant
  specific instances of conduct.

63
Offering Substantive Reputation Evidence

• When the accused offers character evidence about
  himself or the victim under Rule 404(a), it must
  be reputation or opinion character evidence, not
  specific instances of conduct.
• Specific instances of conduct can only be brought
  out on cross-examination. Rule 405(a)

64
Offering Substantive Reputation Evidence

• Reputation evidence is a form of hearsay, but
  there is an exception. Rule 803(19)
• Must lay an appropriate foundation for or
  testimony about someones reputation, including a
  showing that the witness is familiar with the
  persons reputation.
• State v. Morrison, 84 N.C.App. 41 (1987)

65
Offering Substantive Opinion Testimony

• But for a witness to testify about a personal
  opinion as to the witnesss character trait, only
  minimal foundation is required.
• State v. Morrison, 84 N.C.App. 41 (1987)
• If the witness knows the person about whom he or
  she is offering opinion testimony as a character
  trait, that is enough c/e will expose any
  defects.

66
Expert Opinion Testimony on Credibility

• General Rule Not allowed.
• State v. Heath, 316 NC 337, State v. Aquallo, 318
  NC 590
• Rule 405(a) Expert testimony on character or a
  trait of character is not admissible as
  circumstantial evidence of behavior.
• There are some buts see the manuscript

67
Civil Litigants

• Rule 404 prohibits character evidence to prove
  party acted in conformity therewith,
• No exceptions apply in civil cases
• Unless the party is a witness
• Or unless character is an essential element of a
  charge, claim or defense. Rule 405(b)

68
Summary

• Rule 404(a) determines when the character of
  someone is substantively relevant, whether or not
  they testify
• Rule 405 governs whether you get
  reputation/opinion testimony only or also
  specific instances of conduct

69
Summary Continued

• Rule 608 determines when the character of a
  witness is admissible on the witnesss
  credibility, and also governs whether you get
  reputation/opinion only or also c/e about
  specific instances of conduct.
• Rule 609 governs admissibility of a witnesss
  criminal record.

70
Youre in court.

• You hear the words
• Objection, Your Honor. Improper Character
  Evidence.
• What do you do?

71
Ask the proponent of the evidence

• What is it being offered to prove?
• If it isnt offered to prove that the person
  acted in conformity therewith it isnt
  character evidence. Listen for Code
  propensity, tendency, likely.
• You can then turn to Rule 401, 404(b), or 403
• If it is Character Evidence, then

72
Ask the proponent of the evidence

• What makes this evidence admissible? Which Rule?
• Make the proponent tell you why it is admissible.
• Remember, Character Evidence is generally NOT
  ADMISSIBLE to prove that the person acted in
  conformity therewith. There must be a specific
  exception that applies.