Presentation on theme: "CHARACTER EVIDENCE The Interplay Between Rules of Evidence 404(a), 405, 608, & 611 Catherine C. Eagles Resident Superior Court Judge October 2003."— Presentation transcript:
1CHARACTER EVIDENCEThe Interplay Between Rules of Evidence 404(a), 405, 608, & 611Catherine C. EaglesResident Superior Court JudgeOctober 2003
2What is Character Evidence? Rule 404(a):“Evidence of a person’s characteror a trait of his character” offered “forthe purpose of proving that he acted inconformity therewith on a particularoccasion.”
3What is Character Evidence? Evidence of REPUTATIONEvidence of OPINIONEvidence of ACTIONSOffered 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.
4What 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 himEvidence offered to prove intent, motive, plan, identity, etc.404(b) evidence.
5What 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.
6If 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).
7What is Character Evidence? Evidence offered substantively:X is a drug-dealer and thus is guilty of this drug offenseX is a violent person and thus is guilty of this assaultX is a law-abiding person and thus X couldn’t have committed this crime.
8What is Character Evidence? Evidence offered re: credibilityX 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 witnessX has been convicted of previous crimesX has lied many times before
9CHARACTER EVIDENCEThe 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:
10Three exceptions.Character of accused, if pertinent & offered by accused or by prosecution to rebut.Character of victim, if eitherpertinent & offered by accused or by prosecution to rebut, orD offers evidence V aggressor, then State can offer evidence of victim’s character for peaceablenessCharacter of witness as provided in Rule 607, 608, & 609.
11CHARACTER 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. . . ”
12Character 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”?
13Character 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.
14Character 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)
15So under Squires,Defendant is a good guy and therefore could not have committed this crime.NOT ADMISSIBLEDefendant is a law-abiding guy and therefore could not have committed this crime.ADMISSIBLE
16Other character traits that are likely to be “pertinent” as to a criminal defendant: Peacefulness - if crime is one of violenceHonesty - if crime is one that involves criminal intent or deceitTruthfulness - if crime is one that involves deceit or if defendant testifiesAbstinence - if crime is one that involves drug or alcohol use
17Inadmissible 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.
18Effect 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)
19Character 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).
20Character 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).
21Defendant’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, andRule 405 allows c/e of character witness about “specific instances of conduct”
22Defendant’s character State v. Cummings, 332 N.C. 487 (1992)(ok to c/e defense character witnesses for peacefulness about D’s 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 D’s convictions for B&E, larceny and PSG).
23Defendant’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.
24Defendant’s character So General Rule:State cannot offer character evidence about the defendant.
25Repeat after me. The general rule is: The State cannot offer character evidence about the defendant.
26Summary: 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.
27Character of victimRule 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
28What’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)
29What’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 characterBut 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.
30What’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).
31What’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.
32What’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)
33State’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).
34State’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.
35State’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).
36Summary: 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.
37Back to Rule 404(a)’s 3 exceptions to the “No character evidence” rule: 1. Character of Accused2. Character of Victim3. 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.”
38Character of Witnesses Rules 607, 608 and 609Focus is on credibilityIf a party is a witness, then Rules 607, 608 and 609 apply to his/her testimony as well.
39Character of Witnesses: Rules 607 & 609 Rule 607: Any party may attack the credibility of a witness including the party who called him to testifyRule 609: Cross-examining a witness about the witness’s criminal convictions.See manuscript.
40Character 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.”
41Character 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., credibilityThis 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)
42Credibility 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.
43Credibility 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.
44Credibility 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).
45Credibility 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.
46Summary: Reputation of Witness Only relevant character trait of a witness is truthfulness or untruthfulnessOpinion/Reputation evidence can be offered only after credibility attacked.Opinion/Reputation evidence can support credibility or attack credibility
47Turning 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).
48Witness 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.
49Witness 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).
50Witness 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).
51Witness 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.
52Credibility 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.
53Credibility 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.
54Credibility 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).
554 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 untruthfulnessThe conduct in question is in fact probative of truthfulness or untruthfulnessThe conduct in question did not result in convictionThe inquiry into the conduct takes place on cross-examination
56Extrinsic EvidenceRule 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.”
57Extrinsic 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.
58Extrinsic 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.
59Extrinsic 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.
60C/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)
61Summary: 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 discretionCan’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.
62Offering 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.
63Offering 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)
64Offering 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)
65Offering 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.
66Expert Opinion Testimony on Credibility General Rule: Not allowed.State v. Heath, 316 NC 337, State v. Aquallo, 318 NC 590Rule 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
67Civil LitigantsRule 404 prohibits character evidence to prove party acted “in conformity therewith,”No exceptions apply in civil casesUnless the party is a witnessOr unless character is “an essential element of a charge, claim or defense.” Rule 405(b)
68SummaryRule 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;
69Summary ContinuedRule 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.
70You’re in court. You hear the words: What do you do? “Objection, Your Honor. Improper Character Evidence.”What do you do?
71Ask 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 403If it is Character Evidence, then:
72Ask 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.