Transcript CHARACTER EVIDENCE - School of Government

CHARACTER EVIDENCE
The Interplay Between Rules of
Evidence 404(a), 405, 608, & 611
Catherine C. Eagles
Resident Superior Court Judge
October 2003
What is Character Evidence?
• Rule 404(a):
“Evidence of a person’s character
or a trait of his character” offered “for
the purpose of proving that he acted in
conformity therewith on a particular
occasion.”
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.
What isn’t Character Evidence?
• Evidence offered to prove state of mind.
– He’s 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.
What isn’t Character Evidence?
• Evidence offered to show the
circumstances surrounding event at issue.
– The room in D’s house where victim’s body
found is also full of drug paraphernalia.
• Evidence offered to show the witness
couldn’t accurately perceive or remember.
– Witness drunk at the time of the relevant
incident and thus can’t accurately perceive and
remember what happened.
If it isn’t character evidence,
• You get to forget about the character
evidence rules.
• You can rely on Rule 401(if it’s relevant,
let it in) and Rule 403, and possibly Rule
404(b).
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 couldn’t
have committed this crime.
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 shouldn’t 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
CHARACTER EVIDENCE
• The general rule: Character evidence is not
admissible.
• Rule 404(a): “Evidence of a person’s
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:
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 victim’s character for peaceableness
• Character of witness as provided in Rule 607,
608, & 609.
CHARACTER OF CRIMINAL
DEFENDANT
• Rule 404(a): “Evidence of a person’s
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. . . ”
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”?
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
D’s 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.
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)
So under Squires,
• Defendant is a good
guy and therefore
could not have
committed this crime.
• NOT ADMISSIBLE
• Defendant is a lawabiding guy and
therefore could not
have committed this
crime.
• ADMISSIBLE
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
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.
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)
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 highrisk sex offender.
• This is general character evidence not relevant to
a pertinent character trait and therefore not
admissible under Rule 404(a).
Character for: not profaning
mom’s 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).
Defendant’s 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”
Defendant’s character
• State v. Cummings, 332 N.C. 487
(1992)(ok to c/e defense character
witnesses for peacefulness about D’s 20year-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 D’s
convictions for B&E, larceny and PSG).
Defendant’s 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
defendant’s prior drug deals] was to illustrate
defendant's predisposition toward drug
violations.” New trial.
Defendant’s character
• So General Rule:
• State cannot offer character evidence about
the defendant.
Repeat after me.
• The general rule is:
• The State cannot offer character evidence
about the defendant.
Summary: Defendant’s character
• State cannot offer character evidence about the
defendant in State’s 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.
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 victim’s character for
peacefulness. State v. Johnson, 344 NC 596 (1996)
• Note Rule 412
What’s “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)
What’s “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 Victim’s character
• But not V’s 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 D’s state of mind.
What’s “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 individual’s sexual
orientation bears no relationship to the likelihood
of threatening a sexual assault and thus is not
pertinent under Rule 404(a).
What’s “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.
What’s “pertinent” about the victim?
• In rape case, Victim’s “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)
State’s evidence about victim’s
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).
State’s evidence about victim’s
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 state’s
rebuttal evidence concerning victim’s
reputation for fidelity to her husband. Rule
404(a)(2). Also discusses. Rule 412.
State’s evidence about victim’s
character
• But where defense does not offer evidence
about the victim’s 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).
Summary: Victim’s character
• State cannot offer character evidence about the
victim in case in chief.
• Defendant can offer reputation/opinion evidence
about victim’s 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 victim’s peacefulness.
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 person’s character . . not
admissible . . .except: (3) evidence of the
character of a witness as provided in Rules
607, 608, and 609.”
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.
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 witness’s criminal convictions.
• See manuscript.
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
court’s discretion be
inquired into on c/e if
they concern character for
truthfulness or
untruthfulness.”
Character of Witnesses
• So the character of a witness is inadmissible and
can’t 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)
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.
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. Girlfriend’s 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.
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: D’s 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 State’s
introduction of both D’s exculpatory written
statement to the police and evidence contrary to
that statement. Rule 608(a).
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.
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
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
court’s 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 witness’s
character, 608(b)(2).
Witness Credibility: Specific Instances
of Testifying Witness’ Conduct
• State v. Baldwin, 125 N.C. App. 530 (1997).
• In a homicide case, State offered D’s 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
detective’s character for untruthfulness.
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).
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
defendant’s truthfulness in this case.”
Rule 608(b).
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 crossexamined 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.
Credibility of another Witness:
Rule 608(b)(2)
• State v. Baymon, 336 N.C. 748 (1994)
• In child sex offense case, trial court erred in
allowing state’s witness (victim’s teacher) to
testify about specific instances of the victim’s
truthfulness on direct.
• Victim’s credibility is not “an essential element
of the charge” under Rule 405(b) and so specific
instances of conduct are inadmissible.
• Rule 608(b) doesn’t help the State: specific
instances admissible only on cross-examination.
Credibility of another Witness:
Rule 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.
Credibility of another Witness:
Rule 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).
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 W’s 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 crossexamination
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.”
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.
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 witness’s truthfulness.
Extrinsic Evidence
• State v. Walls, 342 N.C. 1 (1995): Homicide
• Rule 608(b) precludes extrinsic evidence about
specific instances of a witness’s 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 witness’s reputation for truthfulness.
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 COURT’S 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)
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 court’s discretion
• Can’t call a witness to testify on direct about
another witness’s SIC even if related to
truthfulness – can only be gone into on cross if
the witness offers an opinion about truthfulness.
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.
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)
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 someone’s reputation,
including a showing that the witness is
familiar with the person’s reputation.
– State v. Morrison, 84 N.C.App. 41 (1987)
Offering Substantive Opinion
Testimony
• But for a witness to testify about a personal
opinion as to the witness’s 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.
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
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)
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;
Summary Continued
• Rule 608 determines when the character of a
witness is admissible on the witness’s 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 witness’s
criminal record.
You’re in court.
• You hear the words:
– “Objection, Your Honor. Improper Character
Evidence.”
• What do you do?
Ask the proponent of the evidence:
• What is it being offered to prove?
– If it isn’t offered to prove that the person
“acted in conformity therewith” it isn’t
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:
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.