Character Evidence in a CRIMINAL Trial on the UBE / MEE

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Character Evidence in a Criminal Trial - When Is It Permitted?

We know that there are three main topics tested within the subject of Evidence and they are Relevance, Witnesses, and Hearsay.  Within each of these three main topics, there is one subtopic heavily tested as well.  Within Relevance, that would be the subtopic of Character Evidence.  Within Witnesses, that subtopic is of course Impeachment, and within Hearsay. that subtopic is made up of the 12 hearsay exceptions.  This post covers one of the main subtopics tested, that of Character Evidence specifically in a criminal matter.


Federal Rule 404(2) allows a defendant in a criminal case to introduce evidence of his own “pertinent character trait,” which allows criminal defendants to bring witnesses as to good character. A pertinent trait is a characteristic that relates to either the crime or a defense to the crime. For example, in a fraud case, the criminal defendant is may call witnesses to testify that he’s an honest person. In a trial for a violent crime such as homicide, battery, or assault, he may bring witnesses to testify that he’s a peaceful person.

Therefore, on the exam, be mindful of (1) the type of crime charged (violent crime vs. crime of dishonesty) and (2) the type of character evidence sought to be admitted.  Character traits pertaining to honesty are not relevant during a trial concerning a violent crime and traits pertaining to violence or non violence are not relevant during a trial concerning a crime of honesty or dishonesty.  

Once the defendant introduces evidence of a “good” character trait, the government may introduce pertinent character evidence to rebut the defendant’s character evidence. The defendant’s raising character evidence is thus sometimes referred to as “opening the door” to the use of character evidence against him.  In other words, the prosecution my not introduce character evidence during their case-in-chief (as we know that the prosecution puts on their case to start a criminal matter) however once the defendant "opens the door," the prosecution may rebut.

For example, the prosecution may have procured - during the scope of discovery - evidence that the defendant a) cheated on his taxes and was fined by the IRS, b) was fired from two jobs for falsifying time cards and c) was found to be in default by failing to make payments pursuant to two promissory notes.  The prosecution may not introduce this evidence during their case-in-chief.  However, once the prosecution rests, and the defendant opens the door by introducing character evidence concerning the defendant's honest character, the prosecution may rebut with all of the above.

Rule 404(a)(2) also permits the criminal defendant to introduce evidence of a pertinent character trait of the victim. This exception allows defendants in homicide or assault cases to show the victim’s character trait of violence or aggression to support the defendant’s claim of self-defense.

Note that in both cases, character evidence can be established by testimony as to the “reputation” of the subject or the “opinion” of the witness. The party may not use evidence of specific instances of conduct to show that the person was more likely to act in a similar manner.

In short, pay attention to the crime(s) charged as well as the type of character evidence being asserted.  In addition, determine if the prosecution is seeking to introduce character evidence during their case-in-chief (improper) or in rebuttal after the defendant has opened the door (proper).


Should you have any additional questions about character evidence in general, character evidence in a criminal matter, character evidence in a civil matter or another area of the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com.

GOOD LUCK!


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