Evidence: The Good, the Bad, and the Ugly

Character Evidence

Clients, victims, and even witnesses are often very concerned that something in their past will come up during the course of a criminal case. Generally, evidence of a person’s character is inadmissible under either the Federal or The Pennsylvania Rules of Evidence. You will find, however, that the admissibility of evidence is not so much focused on the general rule but on exceptions to it. These exceptions form the foundation for motions prior to trial, objections during it, and sometimes appellate issues following a conviction after it.

Law schools offer fourteen-week courses on evidence, and they are generally considered a non-elective part of any legal education. Next to hearsay, character evidence is one of the most difficult parts of that course. Law school professors spend weeks on the topic, and a firm understanding of character evidence is essential to the success of any trial attorney. I would personally question the professional competency of any “trial lawyer” who couldn’t at least explain the basics of character evidence to me.

You’re reading this book just to learn the basics, so I want to present how character evidence pertains to the three most important people in a criminal trial: you, the defendant; the victim or complainant; and the witness(es).

The Defendant

A defendant’s character is generally admissible only if the defendant or his or her attorney introduces it into evidence. In other words, if you or your attorney doesn’t bring it up, the district attorney can’t question you about it or even mention it during the trial. If the DA were to introduce it without either this foundation or some appropriate pretrial motion (the “Prior Bad Acts” motion under Rule 404(b) which we will discuss), it more than likely would cause a mistrial.

Judges want unbiased people sitting as jurors, and the improper introduction of character evidence into a trial harms this concept. If jurors were to hear something negative about a defendant’s past, it would be difficult if not impossible to remove it from their minds even if the judge ordered the jury not to consider it through a “corrective” jury instruction. This is the reason for juror questionnaires and the voir dire process prior to trial. We want people who know nothing about the defendant, the victim, the witnesses, or anyone else involved in the case.

Regardless of their personal histories, most people have done at least a few good deeds in their lives. Relevant character evidence focuses on three areas: honesty, peacefulness, and respect for the law.

The defendant may introduce character evidence for one or all of these areas through witnesses. A character witness is not permitted to give specific examples of good deeds and is permitted to testify only about the defendant’s reputation in the community for these traits. If a defendant introduces character evidence, the district attorney is permitted to introduce evidence to rebut that testimony but only for the particular character trait offered and only by reputation evidence or the accused’s prior convictions (the prosecution may not cross examine on arrests or “prior bad acts.”)

For example, if the defense presented evidence that the accused had a good reputation in the community for being an honest, peaceful, and law-abiding citizen, the prosecution could introduce reputation evidence from someone within the community who could testify to the contrary. The prosecution could also cross examine the defense’s good character witness with evidence of the accused’s prior criminal convictions.

In these situations, the defense’s character witness could obviously testify that these convictions don’t change his opinion of the accused, but it could harm the defense’s case in two ways: (1) it could show that the accused had a criminal history that the judge or jury wouldn’t have otherwise known; (2) it could show that the defense didn’t properly investigate their client’s (the accused’s) background or was trying to deceive or trick the jury. Either consequence is bad for the defense and this is precisely why proper trial preparation is so important!

Prior to introducing character evidence into trial, your attorney should know everything about your past even if you were arrested but never convicted. The law is very broad on what character evidence is relevant at trial. If you introduce character into trial because you want the jury to know you’re a peaceful, honest, and law abiding, you don’t want the prosecution to damage or negate that good evidence with something negative from your past.

If you have a criminal history that involves similar crimes or victims, your attorney obviously wants to keep that out of a trial, but the law, through the Rule of Evidence 404(b), does permit the prosecution to introduce it even if your attorney never brings up your good character to the jury or the judge. This is known as a “Prior Bad Acts Motion,” and the prosecution must establish that they are introducing it to show something other than bad character such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake; otherwise, it is strictly prohibited under the rules of evidence.

The theory behind the inadmissibility of character evidence is that the law wants the fact finder (judge or jury) to make a decision based on the facts presented at trial and not something from a person’s past or background. The law doesn’t want a person to be found guilty because the judge or jury used something that occurred outside of the allegations against the accused individual. The premise behind the “Prior Bad Acts Motion” isn’t conformity with a previous form of conduct but proof rather that the defendant possessed the necessary knowledge, had the opportunity or the experience which allowed him to commit the current crime.

Obviously 404(b) evidence is very bad for the defense because the jury or judge will not only hear about a defendant’s bad past but it will also reinforce the prosecution’s arguments. If this type of evidence is coming into your trial, it’s critical that your attorney devise a strategy to address it. The most ill-advised strategy is to ignore it and allow the prosecution to simply introduce it. Ideally, you want your attorney to talk about the bad evidence before the prosecution to weaken its argument. If your attorney ignores, chooses to ignore it, it will appear that he or she was either attempting to hide it or didn’t know about it.

The Victim/Complainant

Similar to character evidence pertaining to a criminal defendant, the character evidence of the victim is admissible only if your defense attorney introduces it into trial. Once it is introduced, the prosecution may introduce evidence of either the defendant’s bad character to rebut this evidence regarding the victim or offer evidence of the victim’s good character.

Unlike character evidence pertaining to a criminal defendant, either side is permitted to introduce character evidence in the form of reputation testimony (good or bad) or testimony regarding specific examples (good or bad acts). This evidence, however, must still be relevant and relate to the victim’s honesty, peacefulness, and or law-abiding nature.