Character Evidence

There's a lot to know for Evidence on the MBE. Three areas that come up perhaps more than any others are character evidence, impeachment, and hearsay. This post will focus on the first of those three.

When I was first learning character evidence, I found it helpful to separate how the evidence might be offered in a civil case from how it might be offered in a criminal case. Unless character is directly at issue (for example, in a case involving defamation), evidence of character may not be offered by either party in a civil case to prove the conduct of a person.

Criminal cases are trickier. The prosecution can never initiate evidence of bad character of defendant merely to show that defendant is more likely to have committed the crime for which defendant has now been charged. Defendant, however, may introduce evidence of his/her own good character as a basis for proving innocence. To do so, a witness for defendant may testify as to defendant's good reputation for a pertinent character trait and may also give a personal opinion concerning that same trait or another pertinent character trait. In addition, a witness for defendant may introduce reputation or opinion evidence of a bad character trait of the alleged victim when such evidence is relevant to show defendant's innocence. This evidence of the victim's bad character, however, is not allowable in sexual assault cases except under limited circumstances.

If defendant chooses to offer evidence of his/her own good character, then defendant is said to have “opened the door.” Once defendant's witness has offered this evidence, the prosecution then may cross examine defendant's character witness regarding the basis for that testimony. Although defendant's witness was limited to reputation and opinion evidence, when cross examining that witness, evidence concerning specific instances of conduct is allowable to determine the basis of the testimony given by defendant's character witness. This is because defendant's character witness is subject to impeachment on that testimony. 

Rather than cross examining defendant's character witness, the prosecution may (in response to defendant's character witness) instead call its own character witness to testify to defendant's bad reputation or to give an opinion of defendant's character. In doing so, evidence as to specific instances of conduct is not allowable. Likewise, if defendant has offered evidence of a bad character trait of the alleged victim, the prosecution may counter with reputation or opinion evidence of the victim's good character for the same trait or the defendant's bad character for the same trait.