Character Evidence

Propensity and non-propensity uses

The basic rule bars using a person's character trait to argue that the person acted consistently with that trait on the occasion in question. ‘He is violent, so he started this fight’ is a propensity inference. Character evidence may be relevant for another purpose, including motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident. The list describes common purposes, not automatic admission: relevance, unfair prejudice and other rules still apply.

A defendant's prior act may show knowledge or intent without proving propensity if the reasoning genuinely does not depend on ‘once a wrongdoer, always a wrongdoer.’ A court may give a limiting instruction restricting the jury's use of the evidence.

Criminal defendant and victim

In a criminal case, a defendant may offer evidence of the defendant's pertinent trait. If admitted, the prosecutor may rebut it. The defendant may also offer a pertinent trait of the alleged victim, subject to rules on sexual-assault cases and other statutory limits. If the court admits evidence of the victim's trait for aggression, the prosecutor may offer evidence of the same trait in the defendant.

A defendant's offer of a victim's trait can open the door to rebuttal, but not to any unrelated bad acts. Identify which trait was offered and who is responding. The rules are a controlled sequence, not a general permission to introduce either person's history.

Methods of proving character

When character evidence is admissible, it may generally be proved by reputation or opinion testimony. On cross-examination, the court may allow inquiry into relevant specific instances to test the character witness's basis. Specific instances may be admitted as substantive proof when character itself is an essential element of a claim, charge or defense.

Character is rarely an essential element. Defamation, negligent hiring or entrustment, and certain custody or entrapment issues may make a trait directly material depending on the claim and governing law. When it is only circumstantial evidence of conduct, the limited methods apply.

Other acts

Evidence of another crime, wrong or act is not admissible to show a person's character and then infer conduct in conformity. It may be admissible for a genuine non-propensity purpose, such as intent, identity or absence of mistake. The proponent must identify the logical connection to that purpose, and the court may exclude it if unfair prejudice substantially outweighs probative value.

In a criminal case, the prosecution generally must provide reasonable pretrial notice when it intends to offer other-act evidence for a permitted purpose, unless good cause excuses notice. Separate rules require notice for certain sexual-assault propensity evidence. On a question, distinguish the substantive basis from notice and balancing.

Impeachment is a different route

A witness's character for truthfulness may be attacked or supported under impeachment rules. Reputation or opinion evidence about truthfulness is distinct from proof that a person has a violent or careless character. Specific convictions and prior dishonest acts are governed by their own rules, including limits on remote convictions and judicial balancing. Do not analyze impeachment as if it were substantive propensity evidence about conduct at the event.

If a party introduces a character witness to support truthfulness, the opponent may attack that witness's credibility. A witness's truthful character may be supported only after it has been attacked. Keep the purpose and the witness at issue clear.

Civil cases and character as an element

In a civil case, character evidence generally cannot prove conduct in conformity. When a trait is an essential element, however, it may be proved through reputation, opinion or relevant specific instances. A negligent entrustment claim may put a driver's competence directly in issue; a routine negligence claim usually does not make the defendant's general carefulness an element.

Step-by-step analysis

1. State the proponent's purpose: propensity, non-propensity, impeachment or an essential element.
2. Identify the trait and the person whose character is offered.
3. In a criminal case, determine whether the defendant or victim opened a permitted door and what rebuttal is allowed.
4. Choose the permitted method of proof: reputation, opinion, specific acts or another rule.
5. Apply relevance, prejudice balancing, notice and limiting-instruction rules where applicable.

A common trap is calling evidence ‘motive’ when the argument actually asks the jury to infer conduct from a trait. Explain the inference step. If the reasoning works only because the person has a bad disposition, it is propensity reasoning.

Purpose determines whether character evidence is admissible

Character evidence invites the factfinder to reason from a person's general trait to conduct on a particular occasion. The usual prohibition applies when the proponent asks the jury to infer, “This person has a bad or good character, so the person acted consistently with it this time.” The first question is therefore purpose. Evidence about a person's conduct may be admissible for another reason, such as motive, identity, intent, plan, knowledge or absence of mistake, without being admissible as propensity proof.

A defendant charged with shoplifting cannot ordinarily be convicted because a witness says the defendant is a dishonest person. The prosecution may, however, offer evidence of a prior act for a genuinely disputed nonpropensity issue, such as knowledge that an item was stolen, if the act is relevant and survives the required balancing. The prosecutor must identify that chain of relevance rather than relabel propensity as “intent.”

Criminal defendant opens a limited door

In a criminal case, the defendant may offer evidence of the defendant's pertinent character trait. The prosecution may then rebut it. The defendant may also offer evidence of an alleged victim's pertinent trait, subject to special rules for sexual-assault and child-molestation cases. The prosecution may rebut that trait and may offer evidence of the defendant's same trait in some circumstances. This is a limited door, not permission to introduce every aspect of either person's life.

If the defendant calls a reputation witness to say the defendant is peaceful, the prosecutor may ask that witness on cross-examination about a relevant specific incident to test the witness's knowledge. The prosecutor generally may not prove that incident with extrinsic evidence merely to show the defendant behaved badly once. Reputation or opinion testimony is the usual method for this character proof; specific acts may be used on cross-examination within limits.

A defendant charged with assault says the victim has a violent character and calls a witness who knows the victim's reputation. The prosecution may rebut that character evidence. If the defendant instead argues only that the victim attacked first based on eyewitness facts, without offering character evidence, the prosecution cannot automatically introduce the victim's good character simply because self-defense is raised. Track what evidence was offered, not just the claim's label.

The accused's character and the victim's character are different

The prosecution cannot initiate proof of the accused's character trait merely to show conduct in conformity. The accused can choose to introduce a pertinent trait and accept a proper rebuttal. Evidence of the victim's pertinent trait can be offered by the accused in a criminal case, but a homicide prosecution may then offer evidence of the victim's peacefulness to rebut a claim that the victim was the first aggressor. Distinguish this rebuttal rule from proof about the defendant.

Character evidence about a victim can sometimes be relevant to the defendant's state of mind rather than whether the victim acted consistently with a trait. For example, a defendant who knew of the victim's prior violent acts may argue that the information affected the defendant's reasonable perception of imminent danger. If the defendant did not know the acts, they ordinarily cannot explain the defendant's state of mind, though they may be offered for another permissible purpose under the applicable rule.

Prior acts under a nonpropensity theory

A prior act offered for motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake must actually support the identified inference. Similarity matters especially for identity: distinctive features may connect the acts, while a generic resemblance may not. The judge also considers unfair prejudice, confusion, delay and needless cumulative proof. A limiting instruction can direct the jury to the permitted purpose.

In a fraud prosecution, a defendant says a false invoice resulted from an accounting error. Evidence that the defendant used the same concealed billing method in earlier transactions may bear on knowledge or absence of mistake, if the similarities and surrounding facts support that inference. A list of unrelated past dishonest acts offered merely to show the defendant is a fraudster remains propensity evidence.

Civil cases and specific-act proof

In civil cases, character is generally inadmissible to prove that a person acted consistently with a trait, subject to particular claims where character itself is an essential element. Defamation, negligent hiring or entrustment, and certain custody disputes can make character directly relevant. When character is an essential element, specific instances may be admissible because the trait is part of the claim or defense rather than a shortcut to conduct.

Keep substantive relevance separate from the method of proof. A witness may be qualified to give an opinion based on familiarity with the person's reputation or conduct. Cross-examination about relevant incidents tests that basis. The incidents do not become independently admissible merely because the witness was asked about them. On an exam, name both the purpose and the permitted form of proof.

A reliable sequence is: identify the proposed inference; ask whether it is propensity; determine whether the defendant or another party opened the door; classify the method of proof; then test relevance, balancing and any limiting instruction. This sequence prevents admissible motive or knowledge evidence from being confused with forbidden character-to-conduct reasoning.