Relevance and Character Evidence
The first hurdle to presenting any piece of evidence to a court is showing that the evidence is relevant. Relevance is a threshold requirement that must be met before the court can consider the value the evidence may have. Evidence is relevant when it “has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.”[i]
For example, in a breach of contract case, the most relevant and direct piece of evidence is usually the contract itself. The contract shows the court the obligations each party had. One party may also present testimony showing that the opposing party failed to make a payment that was required by the contract. All of this evidence is relevant to showing that one party failed to comply with the contract terms. Proving that one party failed to comply with the contract is a fact of consequence in determining a breach of contract case.
Once evidence is shown to be relevant, that evidence is admissible in court unless it is excluded by some other rule of law or evidence.[ii] Irrelevant evidence is not admissible.
A court may exclude relevant evidence when the probative value of the evidence is substantially outweighed by the danger of one or more of the following:
· - unfair prejudice;
· - confusing the issues;
· - misleading the jury;
· - undue delay;
· - wasting time; or
· - needlessly presenting cumulative evidence.[iii]
Excluding Relevant Evidence
In determining whether relevant evidence should still be excluded, the court is concerned with focusing on the legal issues in the case and avoiding distractions that certain pieces of evidence present.
Unfair prejudice, one of the dangers outweighing the probative value of evidence, is a good example of this. It is a common reason why relevant evidence is excluded. Consider a robbery case where the prosecutor seeks to introduce testimony that a witness saw the defendant using drugs near the store that was robbed about ten minutes prior to the robbery. This evidence is relevant because it shows that the defendant was near the store close in time to when the robbery occurred. However, this testimony’s probative value may be outweighed by the danger of unfair prejudice. This testimony presents the risk of prejudice because it indicates that the defendant may have committed the crime of drug use and, thus, is a person who regularly commits crimes. A court may decide to exclude the observation of the defendant using drugs to prevent the threat of unfair prejudice to the defendant.
The last robbery example highlights a special type of evidence known as “character evidence.” Character evidence is used to describe a character trait of a person, such as a tendency to commit crimes. Character evidence could also include a witness testifying that a party in the case has a reputation in the community of being a violent person, or a witness opinion that the defendant is very honest and truthful.
As a general rule, character evidence may not be used to prove that a person acted in accordance with a character or trait on a particular occasion.[iv] Thus, if a plaintiff wanted to present testimony indicating that the defendant is known as a violent person, this evidence could not be used in an assault case to prove that the defendant actually acted violently on the occasion of the alleged assault. This type of evidence presents a threat of unfair prejudice because it invites the court or jury to judge the defendant based on his reputation, rather than on the facts established during a trial.
Exceptions to the Rule Against Character Evidence
Many exceptions are made to the general rule against character evidence. In criminal cases, the defendant may present character evidence about him or herself.[v] For example, the defendant in an assault case may present a witness who states that the defendant is a non-violent person. The defendant may do this, even though the prosecutor would not be allowed to initially present testimony that the defendant is known as a violent person. However, if the defendant presents evidence showing that he is a non-violent person, then he ‘opens the door’ to the prosecutor presenting rebuttal, or contrary, evidence. The prosecutor would be permitted to show that the defendant is known as a violent person in the community, in an attempt to disprove the defendant’s evidence. Similarly, if a defendant seeks to admit evidence about the character of a victim, the door is opened to the prosecutor to presenting rebuttal evidence about the victim.[vi] Thus, if the defendant presents testimony that the assault victim is known as a violent person, the prosecutor is then free to introduce testimony that the victim is actually known as a peaceful person.
Anytime a person testifies as a witness, character evidence relating to the propensity of that witness to tell the truth becomes relevant. Any party may attack the credibility, or truthfulness, of a witness.[vii] If a witness’s character for truthfulness is attacked during a hearing or trial, evidence regarding that witness’s character for either truthfulness or untruthfulness is admissible. Thus, if a witness is accused of not telling the truth on the witness stand, then evidence may be entered to show that the witness has the character trait of truthfulness. The two main ways that this can be shown is through testimony regarding that witness’s reputation in the community and through opinion testimony.[viii] For example, if Witness Wendy is accused of not telling the truth about the number of drinks she observed the defendant consume at a bar, then her friend James may testify that Witness Wendy is known in their community as being an honest and truthful person. The credibility of a witness may also be attacked with evidence of certain criminal convictions, particularly convictions involving a dishonest act or false statement.[ix]
Frequently, parties may wish to introduce evidence regarding other crimes, wrongs or acts committed by parties. This cannot be used as character evidence when offered to show that the person acted in accordance with that character trait on a particular occasion.[x] A plaintiff bringing a negligence suit, for example, may wish to show that the defendant was found to have acted negligently three years ago in a separate legal action. The plaintiff may argue that this evidence is relevant because that prior case was a negligence case very similar to the current case. The plaintiff is seeking to show that the respondent has the character trait of negligence and, thus, acted negligently on the occasion at issue in the current case. This type of evidence is not permitted because it violates the basic rule against character evidence.
However, the character evidence rules does not apply where the evidence is introduced to prove something other than that the defendant acted in accordance with this character trait. In these situations, evidence of other crimes, wrongs or acts may be introduced to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence or mistake or lack of accident.[xi] For example, if Jim has a history of robbing liquor stores while wearing Richard Nixon masks, and Jim is now accused of robbing a liquor store while wearing a Richard Nixon mask where an issue in controversy is the identity of the person behind the mask, the prosecution may offer evidence of Jim’s history of robbing liquor stores while wearing Richard Nixon masks. The evidence is not being used to show Jim’s character, but to show the identity of the robber. Since Jim’s modus operandi involves using the Nixon mask to rob liquor stores, that fact makes it more likely that he was the one behind the mask on this occasion.
Where allowed, character evidence may also be proven through reputation or opinion testimony. Specific instances of a conduct, however, may be used to prove character only when the character trait being proved is an element of a charge, claim or defense at issue in the case.[xii]
All of these types of character evidence are allowed if the conduct rises to the level of a “habit, routine or practice,” than the evidence is admissible in its own right. Evidence that a person has a habit, routine or practice may be used to show that the person acted in accordance with that habit on a particular occasion.[xiii] If a person goes for a run along the same route every morning at 5:00 AM, for example, he has established a habit. Thus, a court may admit evidence about the defendant’s habit of running at 5:00 AM, to show that the defendant was likely near the scene of the crime, if the crime occurred along the defendant’s usual route around the time that the defendant takes his run. This information is both relevant and admissible as habit evidence.
There are a few other important restrictions placed on relevant evidence. The first relates to remedial measures taken by a party that, had they been in place earlier, could have prevented an injury or harm. A party may not present evidence that the opposing party took some remedial action after an injury occurred to prove negligence, culpable conduct, a design or product defect or that a warning or instruction was necessary.[xiv] A common example is a building posting a “slippery when wet” sign after someone slips [and falls on the building’s floor. It seems relevant that the building recognized the danger the floor posed when wet and thus placed the sign. However, the fact that the building posted this sign after the injury is not admissible to prove that the building acted negligently by not posting the sign earlier. The reason is that we do not want to discourage people from taking remedial measures that prevent injury. If those measures could be used in court to prove negligence before the steps were taken, then people would hesitate to take them. As a result, evidence of remedial measures is only admissible when offered for some other purpose, such as proving that the building exercised control over the area where the person slipped.
Finally, restrictions are also placed on evidence regarding the sexual history of a victim. These restrictions are referred to as “rape shield” laws. In civil and criminal cases involving allegations of sexual misconduct, the law prevents a party from presenting evidence regarding the general sexual predisposition or past sexual behavior of the victim. There are some exceptions, as the evidence may be admitted when used for a different purpose in criminal cases or when its probative value substantially outweighs the danger of unfair prejudice or harm to a party.[xv] For example, if this evidence is necessary to prove consent, as in the case where these parties had a history of consensual rough sex, a court may determine that its probative value outweighs the danger of unfair prejudice. Given the delicate nature of this evidence, courts must very carefully consider the impact the evidence could have on a case.
The purpose of having restrictions placed on evidence that can be introduced is to prevent the court and jury from making decisions based on factors other than what the law dictates. Character evidence poses a particularly high risk of prejudice because it focuses on the character traits of a person, rather than the series of facts and events that the parties are required to prove. However, character evidence does have its place, particularly when used to rebut opposing evidence. Ultimately, the decision to admit or exclude evidence rests with the court, often using the threat of unfair prejudice as a guide.
[i] Fed. R. of Evid. 401.
[ii] Fed. R. of Evid. 402.
[iii] Fed. R. of Evid. 403.
[iv] Fed. R. of Evid. 404(a).
[v] Fed. R. of Evid. 404(a)(2).
[vi] Fed. R. of Evid. 404(a)(2).
[vii] Fed. R. of Evid. 607.
[viii] Fed. R. of Evid. 608(a).
[ix] Fed. R. of Evid. 609.
[x] Fed. R. of Evid. 404(b).
[xi] Fed. R. of Evid. 404(b).
[xii] Fed. R. of Evid. 405.
[xiii] Fed. R. of Evid. 406.
[xiv] Fed. R. of Evid. 407.
[xv] Fed. R. of Evid. 412.