Chapter 25

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25.13 Character Evidence

    25.13.1     Good Character As Defense Theory
    25.13.2     Admission Of Irrelevant Character Evidence Violates Federal Due Process
    25.13.3     Distinction Between Character And Reputation Evidence
    25.13.4     Impeachment By Evidence Of Untruthful Character
    25.13.5     Applicability Of Guilt Phase Instructions: Limitation On Bad Character Evidence Presented At Guilt Phase
    25.13.6     Character Or Reputation Of Victim As Relevant To Self Defense
    25.13.7     Uncharged Acts: Not Relevant To Show Bad Character Or Criminal Propensity Or That Defendant Committed The Charged Act
    25.13.8     Reputation Evidence: Factors To Consider
    25.13.9     Bad Character Evidence As To Associate Of The Defendant: Limiting Instruction
    25.13.10   Sex Crimes: Character Of Defendant As Defense Theory
    25.13.11 Defense Character Witness: Improper For Prosecutor To Ask "Guilt Assuming" Hypotheticals

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25.13.1 Good Character As Defense Theory

See FORECITE National™ 251.4.2 [Good Character Of Defendant As Defense Theory].

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25.13.2 Admission Of Irrelevant Character Evidence Violates Federal Due Process

See FORECITE National™ 300.11.1 [Instruction Allowing Jury To Consider Irrelevant Evidence Violates the Federal Constitution].

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25.13.3 Distinction Between Character And Reputation Evidence

See FORECITE National™ 251.4.1.2 [Distinction Between Character And Reputation Evidence].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 7th Circuit Federal Jury Instructions - Criminal 3.06.

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25.13.4 Impeachment By Evidence Of Untruthful Character

See FORECITE National™ 251.4.3.3 [Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation].

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25.13.5 Applicability Of Guilt Phase Instructions: Limitation On Bad Character Evidence Presented At Guilt Phase

See FORECITE National™ 303.2.10 [Death Penalty: Limitation On Bad Character Evidence Presented At Guilt Phase -- Applicability To Penalty Phase].

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25.13.6 Character Or Reputation Of Victim As Relevant To Self Defense

See FORECITE National™ 253.4.8 [Character Of "Victim"].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 6th Circuit Pattern Jury Instructions - Criminal 7.09.

See also 7th Circuit Federal Jury Instructions - Criminal 3.06.

See also 9th Circuit Model Jury Instructions - Criminal 4.5.

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25.13.7 Uncharged Acts: Not Relevant To Show Bad Character Or Criminal Propensity Or That Defendant Committed The Charged Act

RATIONALE: Without limiting instructions, the jury may convict the defendant based on his or her criminal propensity or bad character rather than proof beyond a reasonable doubt that the defendant committed all elements of the charged offense.

POINTS AND AUTHORITIES: Uncharged misconduct admitted under rules such as FRE 404(b) pose serious probative dangers:

"The defendant already stands accused of one crime. The prosecution now proposes to introduce evidence of an uncharged misdeed on the theory that evidence will somehow tend to prove the charged crime. Although the evidence may be relevant in a criminal case when the defendant is charged with committing similar crimes, such evidence is excluded 'not because it has no appreciable probative value, but because it has too much.' [Citation.]." (Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998) § 901, p. 311.)

Accordingly, when uncharged misconduct evidence is admitted a cautionary and limiting instruction should be seriously considered:

"Under FRE 105 and its state law counterparts, at the defendant's request, judges routinely give limiting instructions when they admit evidence of uncharged misconduct. A few jurisdictions require the judge to give the limiting instruction sua sponte, even absent a defense request." (Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998) § 911, p. 327.)

(See also U.S. v. Brown (9th Cir. 2003) 327 F3d 867 [court committed reversible error in failing to give appropriate curative instructions regarding prosecutors’s inappropriate propensity statements in closing arguments].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 6th Circuit Pattern Jury Instructions - Criminal 7.09.

See also 7th Circuit Federal Jury Instructions - Criminal 3.06.

SAMPLE INSTRUCTION # 1:

    During the course of the trial, as you know from the instructions I gave you then, you heard evidence of acts of the Defendant which may be similar to those charged in the indictment, but which were committed on other occasions. You must not consider any of this evidence in deciding if the Defendant committed the acts charged in the indictment. However, you may consider this evidence for other, very limited, purposes.

    If you find beyond a reasonable doubt from other evidence in this case that the Defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to determine

    [whether the Defendant had the state of mind or intent necessary to commit the crime charged in the indictment]

or

    [whether the Defendant acted according to a plan or in preparation for commission of a crime]

or

    [whether the Defendant committed the acts for which the Defendant is on trial by accident or mistake].

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Instruction 4 [Similar Acts Evidence (FRE 404(b))] (1997).]

SAMPLE INSTRUCTION # 2:

    You have heard [will hear] evidence that [defendant] previously committed acts similar to those charged in this case. You may not use this evidence to infer that, because of his/her character, [defendant] carried out the acts charged in this case. You may consider this evidence only for the limited purpose of deciding:

    (1) Whether [defendant] had the state of mind or intent necessary to commit the crime charged in the indictment;

or

    (2) Whether [defendant] had a motive or the opportunity to commit the acts charged in the indictment;

or

    (3) Whether [defendant] acted according to a plan or in preparation for commission of a crime;

or

    (4) Whether [defendant] committed the acts he/she is on trial for by accident or mistake.

    Remember, this is the only purpose for which you may consider evidence of [defendant’s] prior similar acts. Even if you find that [defendant] may have committed similar acts in the past, this is not to be considered as evidence of character to support an inference that [defendant] committed the acts charged in this case.

[1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.05 [Evidence of Defendant’s Prior Similar Acts] (2002).]

SAMPLE INSTRUCTION # 3:

You [are about to hear] [have heard] evidence that the defendant (describe evidence the jury is about to hear). You may not use this evidence to decide whether the defendant carried out the acts involved in the crime charged in the indictment. However, if you are convinced beyond a reasonable doubt, based on other evidence introduced, that the defendant did carry out the acts involved in the crime charged in the indictment, then you may use this evidence to decide (describe purpose under 404(b) for which evidence has been admitted.)

[Remember, even if you find that the defendant may have committed [a] similar [act] [acts] in the past, this is not evidence that [he] [she] committed such an act in this case. You may not convict a person simply because you believe [he] [she] may have committed similar acts in the past. The defendant is on trial only for the crime[s] charged, and you may consider the evidence of prior acts only on the issue of (state proper purpose under 404(b), e.g., intent, knowledge, motive.)]

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.08 [Defendant's Prior Similar Acts (Where Introduced to Prove an Issue Other Than Identity)] (FRE 404(b)) (2000)].]

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25.13.8 Reputation Evidence: Factors To Consider

RATIONALE: Without specific instruction the jury may not understand that it must consider the factors which may influence the reliability of a reputation witness.

POINTS AND AUTHORITIES: Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:69 [General Instructions-Reputation] (West, 1999).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 6th Circuit Pattern Jury Instructions - Criminal 7.09.

See also 7th Circuit Federal Jury Instructions - Criminal 3.06.

SAMPLE INSTRUCTION:

    In weighing the probative value, if any, of witness reputation evidence, consider the following:

    1.    How long the witness knew about the defendant's alleged reputation;

    2.    The circumstances under which the witness learned about the defendant's alleged reputation;

    3.    The opportunities the witness had to discuss the alleged reputation.

    4.    Any other factor affecting the credibility and weight, if any, of the evidence.

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25.13.9 Bad Character Evidence As To Associate Of The Defendant: Limiting Instruction

See FORECITE National™ 26.5.3.10 [Uncharged Acts As To Associate Of The Defendant: Limiting Instruction].

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25.13.10 Sex Crimes: Character Of Defendant As Defense Theory

See FORECITE National™ 29.1.15 [Sexual Assault Of Child: Expert Testimony That Charge Is Inconsistent With The Defendant’s Character Traits] [expert testimony regarding likelihood that defendant would commit sexual assault on a child]. See also the Shellow Instructions: Sexual Assault: Good Character of Defendant; Sexual Morality.

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25.13.11 Defense Character Witness: Improper For Prosecutor To Ask "Guilt Assuming" Hypotheticals

PRACTICE NOTE: "Character testimony in a criminal trial is admitted pursuant to Rule 405(a) of the Federal Rules of Evidence only as it may bear on the issue of guilt. Although an argument can be made that guilt-assuming hypothetical questions may be probative of the credibility of a non-expert witness, an opinion elicited by a question that assumes that the defendant is guilty can have only negligible probative value as it bears on the central issue of guilt . . . And, in addition to a proper application of the rules of evidence, adherence to a basic concept of our justice system, the presumption of innocence, is not served by this line of questioning." (United States v. Mason, 993 F.2d 406, 408-09 (4th Cir. 1993) (footnote omitted); see also United States v. Shwayder, 312 F.3d 1109, 1122 (9th Cir. 2002); United States v. Velasquez, 980 F.2d 1275, 1277 (9th Cir. 1992).)

See also FORECITE National™ 18.6.8 [Improper For Prosecutor To Ask Defense Witnesses If Government Witnesses Were Lying – Forcing A Defense Witness To Call A Prosecution Witness A Liar Is Prosecutorial Misconduct].

RESEARCH NOTES:

Character Evidence, 59 Fordham L. Rev. 453 (1990).

Harmless Error: Abettor of Courtroom Misconduct, 74 J. Crim. L. & Criminology 457 (1983).

Cross-examination of character witness for accused with reference to particular acts or crimes, 47 A.L.R.2d 1258, supp sec. 22.