Clients, victims and even witnesses are often very concerned that something in their past will come up during the course of their criminal case. It is very important to understand that 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 the exceptions to it. These exceptions form the foundation for pre-trial motions, objections, and appellate issues following a conviction.
There is a 14 week law school courses on Evidence and it is 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 attorney with a trial or an appellate practice. I would question the professional competency of any “trial lawyer” who couldn’t at least explain the basics of character evidence to me.
You are reading this book just to learn the basics and so I just want to present how character evidence pertains to the three most important people in a criminal trial: (1) YOU -The Defendant; (2) The Victim/Complainant; and (3) Witnesses.
A defendant’s character is generally only admissible if the defendant or his attorney introduces 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 the appropriate pretrial motion (aka a “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 a juror were to hear something negative about a Defendant’s past, it would be difficult, if not impossible, to remove it from the juror’s mind even if the judge ordered that the jury not to consider it. 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 a person’s history most people have done at least a few good deeds in the course of their lives. Relevant character evidence focuses on three (3) areas: (1) honesty; (2) peacefulness (3) law abiding.
The Defendant may introduce character evidence for one or all of these areas through a witness. A character witness is not permitted to give specific examples of good deeds and only permitted to testify about the Defendant’s reputation in the community for these traits. If a Defendant does introduce character evidence, the district attorney is permitted to introduce evidence to rebut that testimony but only for the particular character trait offered into evidence.
Prior to introducing character evidence into trial it is critical that your attorney know everything about your past, even if it did not result in a criminal conviction or even an arrest. 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 that you are a peaceful, honest and law abiding person, you don’t want the DA to damage or negate that good evidence with some negative from your past.
If you have a criminal history that involves similar crimes or victims, your attorney obviously wants to keep it out of a trial but the law, the through the Rule of Evidence 404(b) does permit the DA 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 DA must establish that she is introducing to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake.
The theory behind the inadmissibility of character evidence is that 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 incident in their deliberation. The premise behind the “Prior Bad Acts” motion isn’t conformity with a previous form of conduct but proof rather that the defendant possessed knowledge or 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 the defendant’s bad past but it will also reinforce the prosecution’s arguments. If this type of evidence is coming into your trial, it is important 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 their argument. If your attorney ignore it will appear that he was attempting to hide it or he didn’t know about it.
Similar to character evidence pertaining to a criminal defendant, the character evidence of the victim is only admissible if your defense attorney introduces it into trial. Once it is introduce the prosecution may introduce evidence of either the defendant’s own 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 introduce character evidence in form a 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 character for (1) honesty; (2) peacefulness (3) observance of the law (law abiding.)
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