Don't Fear Character Evidence

Character evidence is scary for lawyers to put on to defend their clients at trial. Mostly because it is feared that even bringing in vague good character evidence will open the door for the prosecutor to bring in whatever bad character evidence they can find in rebuttal.

California law says character evidence is admissible “if offered by the defendant to prove his conduct in conformity with such character or trait of character.” Once the defendant offers evidence showing that committing the crime (or some aspect of the crime) was not in conformity with their general character, the prosecution may offer character evidence rebutting the evidence adduced by the defendant. California Evidence Code Section 1102.

California allows three kinds of character evidence to be admitted:  Reputation, opinion and evidence of specific acts.  The most common type of character evidence admitted is reputation evidence. People will take the stand to talk about defendant’s positive or negative reputation within a community of a character trait. The opinions of those with more personal knowledge of the defendant are usually admitted whereas those who don’t have a basis for the opinion are excluded. Evidence of specific acts is the least likely type of character evidence to be admitted. In many cases, evidence of similar acts by the defendant will prejudice or confuse the jury if they are to similar to the case at hand.

Recently the California Supreme Court clarified this and hopefully made it less scary by throwing out a death conviction after the prosecution rebutted the defendant’s good character evidence by presenting evidence of the defendant’s racist and white supremacist views. The type of good character evidence presented was in the vein of defendant was a good father, a good husband a good provider and had readily accepted responsibility other times he had been arrested. To rebut this, the prosecutor put on evidence of defendant’s belief in the superiority of the white race.

The court held that what the prosecutor did was wrong, wrong enough to reverse the jury’s death finding. The court held that the trial judge was wrong for admitting it and improperly corrected the jury when he instructed the jury that

“defendant's beliefs, allegiance, and tattoos are entitled to First Amendment protection. But [his instruction] did not inform the jury that it was permitted to consider the evidence for certain purposes (for example, to evaluate defendant's violent propensities) and not others (to conclude defendant has bad character because he holds morally reprehensible beliefs).”

People v. Young, Cal Supreme Court 2019.

As morally repugnant as the defendants views are, “the First Amendment prohibits the introduction of this evidence for the purpose for which it was used at the penalty retrial, we find error.” People v Young.

So the lesson to be learned is that by putting on defendant’s friends and relatives to say they are a good person you are not opening your client up to the introduction of any crazy thing the prosecution dredges up. There are most certainly limits to what may be admitted and the defense bar shouldn’t be afraid of using character evidence in your defense.

Make sure when you go to court on your case that your lawyer is armed with and confident enough to use character evidence if it will help your case.


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