MBE Tip: Character Evidence

A few important points to keep in mind to clear up a topic that most of my students find confusing: character evidence in a criminal case:

In a criminal case, the defense can open the door with positive reputation or opinion evidence but *only if that evidence is pertinent to the crime for which the defendant has been charged. The prosecution cannot open the door with negative evidence in the way described above. That would be deemed inadmissible character evidence. But once that door has been opened, the prosecution can walk through it in two different ways. The prosecution can call on direct its own witness to rebut the defendant’s character witness. If it chooses that route, it’ll be limited to the same evidence the defense was limited to when opening the door: pertinent reputation or opinion evidence. The prosecution can instead choose to cross examine the defendant’s character witness. Here, the prosecution can rebut defendant’s character witness with reputation evidence, opinion evidence, *and evidence of specific acts by defendant. Why are specific acts allowed on cross but not on direct. The theory is that those questions are geared not towards proving the defendant’s character (which would be inadmissible character evidence) but instead towards impeaching the defendant’s character witness.