Character evidence - The General Principle

Character evidence is inadmissible to prove that a person acted in conformity therewith on a specified occasion.

“Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. . . . The State may not show the defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.”  Michelson v. United States, 335 U.S. 469, 475 (1948) (footnotes omitted)(citation omitted).

Competing Concerns:  proper and improper inferences concerning character that arise from pertinent traits or unrelated prior bad acts v. information pertinent to the element of the crime charged.

Mil. R. Evid. 404(a) – the Exceptions.

(a)  Character evidence generally.  Evidence of a person’s character or a trait of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
                (1)  Character of the accused.  Evidence of a pertinent trait of the character of the accused offered by an accused, or by the prosecution to rebut the same;
                (2)  Character of victim.  Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide or assault case to rebut evidence that the victim was an aggressor;
                (3)  Character of witness.  Evidence of the character of a witness, as provided in Mil. R. Evid. 607, 608, and 609.

Pertinent trait of the Accused:

The accused may offer a character witness to testify concerning a pertinent character trait which makes it unlikely that he committed the charged offense (Mil. R. Evid. 404(a)(1)).  In other words, this is circumstantial evidence of conduct.  “Pertinent” in 404(a) means the same thing as “relevant” as that term is defined in 401. 

Mechanically, the proponent demonstrates, through direct evidence, the following:

The person has a particular character trait;

the witness has an opinion about the trait, or is familiar with the person’s reputation concerning that particular trait, or can testify concerning specific acts relevant to the trait;

the witness states an opinion, relates the reputation, or, under very limited circumstances, testifies about specific instances of conduct relevant to the trait in issue.  MRE 405.

When submitting the request for reputation or opinion witnesses, the proffer should include the following foundational elements:  the name of the witness, whether the witness belongs to the same community or unit as the accused, how long the witness has known the accused, whether he knows him in a professional or social capacity, the character trait know, and a summary of the expected testimony.  United States v. Breeding, 44 M.J. 345 (1996).

The formula could be applied in the following scenarios:

Pertinent
Offense                                                                 Character Trait
Larceny                                 Trustworthiness or                                                               Honesty
                                                                                Drunkenness                         Sobriety

Some additional “pertinent character traits:” 

good moral character:  United States v. Stanley, 15 M.J. 949 (AFCMR 1983) (military judge erred in not permitting defense to present evidence of “good moral character” in trial for indecent acts/liberties with female under age of 16);

lawfulness:  United States v. Clemons, 16 M.J. 44 (C.M.A. 1983) (reversing conviction for failure to permit introduction of evidence concerning character for lawfulness);

“good conduct as an officer.” United States v. Benedict, 27 M.J. 253 (C.M.A. 1988) (reversible error to excluded evidence of awards and OERs as evidence of character trait in sexual molestation case);

heterosexuality: United States v. Gagan, 43 M.J. 200 (1995) (heterosexuality is pertinent character trait when charged with homosexual assault).

peaceableness.  United States v. True, 41 M.J. 424 (1995).  Although no prejudicial abuse of discretion, evidence of accused’s peaceable nature should have been allowed in rape case, even where victim was asleep and, except for fact of penetration, the government did not allege any violence or force.

truth and veracity.  United States v. Smith, 46 F.3d 1223 (1st Cir.), cert. denied, 116 S. Ct. 176 (1995).  Court affirmed fraud convictions holding it was error (though harmless) when judge ruled defendant could not elicit evidence of his reputation for truth and veracity until he had taken the stand, as character traits were pertinent to charged offenses.

The accused’s general good military character is a pertinent character trait if there is a nexus, however strained or slight, between the crime circumstances and the military.  The defense, in virtually every case, and certainly in every “military” offense prosecution, may attempt a “good soldier defense” by presenting the accused’s good military character evidence. United States v. Wilson, 28 M.J. 48 (C.M.A. 1989).  Consider, however, impact of  United States v. Foster, 40 M.J. 140 (CMA 1994) (service discrediting behavior or conduct prejudicial to good order inherent in all enumerated offenses).

If defense counsel loses motion in limine to preclude government from cross-examining character witnesses regarding accused’s bad acts, a tactical election not to present good character case probably will bar review.  United States v. Gee, 39 M.J. 311 (C.M.A. 1994).

Pertinent Trait of the Victim:  The accused may offer (and the Government may rebut) character evidence concerning a pertinent trait of the victim’s character that makes it likely that the victim acted in a certain way on a specified occasion (Mil. R. Evid 404(a)(2)).  United States v. Rodriquez, 28 M.J. 1016 (A.F.C.M.R. 1989).

The rule also contains a limited exception permitting the Government to introduce evidence of the victim’s character trait for peacefulness to rebut evidence that the victim was the aggressor in a homicide or assault case.  United States v. Pearson, 13 M.J. 922 (N.M.C.M.R. 1992).

The foundational elements for this exception would include:

Proof that the victim has (e.g.) a violent or peaceable character;

the witness knows about the character trait either personally or by reputation;

the witness testifies concerning his or her opinion or concerning the victim’s reputation.