Trial Evidence Series

Character evidence is evidence that suggests that a person or entity has a propensity to act in a certain way.  It’s powerful evidence, so powerful that it tends to overwhelm everything else.  In addition, opening up the issue of someone or something’s character can be very time-consuming.  And the legal issues are complicated.  Accordingly, judges in civil cases are very reluctant to allow character evidence, even when there’s authority for its admission.

But good lawyers don’t let this reluctance get in the way.  They know that character evidence, by the very fact of its persuasive power, provides a tremendous opportunity, so they do their research, scour their cases for any chance to inject it, and present well-reasoned authority to the trial judge with plenty of advance notice so she can be comfortable ruling in their favor.

Methods of Proof.   When character is admissible, there are three main ways to prove it: (1) prior or subsequent acts; (2) reputation; and (3) opinion.  EC 1100, FRE 405.  Acts are proved by a witness with personal knowledge or by a document such as a record of criminal conviction.  A reputation character witness usually must show he has been in 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 the witness knows of the reputation. EC 1324, FRE 803(21).  An opinion character witness must show that he knows the subject well enough to have formed a reliable opinion of the relevant character trait, and that he actually has an opinion.

Purpose.  The first question to ask in analyzing the admissibility of character evidence is why it’s being offered.  Character evidence is usually offered for one of three purposes: (1) as a material issue in the case; (2) to show someone’s behavior was consistent with the trait on a specific date; (3) as relevant to someone’s credibility as a witness.

Material Issue.  Character evidence is admissible when character is a material issue in the case.  In a slander or libel case, for example, reputation and damage to reputation are at the heart of the matter, as is the truth of the accusation.  Negligent entrustment is another type of case where character is a material issue.  For example, the school district should have known better than to hire the town drunk to drive the school bus.  When admissible on this basis, character generally may be proved by acts, reputation and opinion.

Conduct on a Specific Occasion.   In civil cases, character evidence offered to show that someone must have acted in conformity with that propensity on a specific occasion (“if he did it before, he did it again this time”) is inadmissible. EC 1101(a)  The only exception is for habits.  EC 1105 and FRE 406 allow propensity evidence if the activity is so frequent and regular that it can be considered a habit or custom.  The activity must be specific and consistent, almost automatic.  When admitted for this purpose, the evidence is proved by someone with knowledge (“I always buckle my seatbelt,” “We always record the checks in the ledger”).

Credibility.  Evidence relating to a witness’s honesty, truthfulness or veracity may be admitted regarding the witness’s credibility.  No other character traits are admissible for credibility.  Either side may attack or support a witness’s character regarding credibility; however, the witness’s character may not be supported until after it has been attacked.  EC 785, 786, 790, 1101(c), FRE 607, 608.

When a character witness testifies that another witness has a good character for truth and veracity through either reputation or opinion, that witness’s testimony may be impeached with questions about whether she “has heard” of specific instances of the witness-at-issue’s bad character.  “Have you heard that Mr. Babble lied on his civil-service exam last October?”

Generally, a witness’s truthfulness cannot be attacked or supported by specific acts of that witness.  A limited exception in federal court [FRE 608(b)] allows cross-examination if the questioned instances are probative of truthfulness.  But if the witness denies the prior bad behavior, the cross-examiner cannot prove otherwise extrinsically.

Under EC 788 and FRE 609, a greater exception exists for certain criminal convictions.  Judges tend to interpret this rule narrowly in civil cases.  The following factors are important: (1) how recent the conviction is; (2) how much it reflects dishonesty (embezzlement vs drug possession); (3) how likely is it to mislead or confuse the jury (its similarity to the conduct at issue); and in criminal cases, (4) how likely is it that its admission will keep the defendant from testifying.

You may prove the conviction only by cross-examining the witness or by introducing the record of judgment.  In California, evidence is limited to name of felony, date and place of conviction.  You must have the record in hand before asking about it, or must have a good-faith basis for believing that it occurred.  You cannot use such convictions if they are constitutionally defective or if the witness has been relieved of the consequences through a pardon or other procedural devices.

“Non-character” purposes.  EC 1101(b) and FRE 404(b) provide a fourth general category of  purposes for which character evidence is frequently offered.  This type of evidence is particularly powerful and  provides a great opportunity and danger for civil and criminal lawyers.  I’ll discuss it in detail next issue.

Tim Hallahan is Director of the Trial Advocacy Program at Stanford Law School, a Judicial Education Attorney with the California Judicial Council, a national CLE speaker, and cofounder of The Hecht Training Group, a litigation skills training firm (http://www.hechttraininggroup.com). He also serves on the ACBA CAAP Training Committee. 

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