The Character Evidence Conundrum

unKAP-ed Legal, PLLC was recently commissioned to research character evidence in a trial with a plethora of interesting character evidence issues. The experience inspired this post, which will hopefully serve as a very quick, admittedly cursory brush up on Federal Rule of Evidence 404 - character evidence.

Like most attorneys, counsel in our case sought to introduce damning evidence of the opposing parties bad character in order to sway the jury and place a bitter taste in their mouth (likely with secret hopes of coloring the jury's view of the evidence). Unfortunately (or fortunately) the rules prevent this exact result.  Although attorneys normally think of character evidence as inadmissible, the real question to ask to determine whether your character evidence is admissible or inadmissible is: what is the purpose of the evidence? Character evidence, offered to show action in conformity therewith, otherwise known as propensity, is inadmissible. See Fed. R. Evid. 404(a)(1). Simply put, if you plan to offer evidence to show that the witness has done some act now, simply because the witness acted a certain way on a past occasion, your evidence is not admissible.

If you find yourself in this precarious position, think about what other purpose the evidence possibly serves if introduced during the trial. If the evidence is relevant to show motive, intent, opportunity, plan or scheme, modus operandi, lack of mistake, or any other purpose apart from propensity, your evidence is likely admissible. See Fed. R. Evid. 404(b). Usually, a colorable argument can be made that your purpose in introducing the evidence is something apart from showing propensity.

Remember that special rules apply in a criminal case where self-defense is alleged under Rule 404(a)(2) as limited in form by Rule 405. Also note that the character trait of truthfulness or untruthfulness is always a relevant topic of cross-examination subject to limitation by Rules 607-610, of the Federal Rules of Evidence. Finally, keep in mind that Rule 403, Federal Rules of Evidence, always applies, and can exclude otherwise admissible evidence if the probative value of the evidence is substantially outweighed by the risk of unfair prejudice, issue confusion, the jury being misled, undue delay, waste of time, or needless presentation of cumulative evidence.

The long and short is: When seeking to introduce character evidence remember to focus on the why

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