CHARACTER EVIDENCE The Interplay Between Rules of Evidence

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. Mc. Cray, 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 high-risk 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 20 year-old assault conviction). • State v. Hargett, 577 S. E. 2 d 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 SE 2 d 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.