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251.4 Good Character Of Defendant

    251.4.2 Good Character Of Defendant As Defense Theory

    251.4.2.1 Good Character Of Defendant: Right To Instruction As Defense Theory
    251.4.2.2 Whether Jury Should Be Instructed That Good Character Of Defendant – “Standing Alone” -- Is Sufficient To Raise A Reasonable Doubt
    251.4.2.3 Relating Good Character Evidence To Prosecution's Burden
    251.4.2.4 Good Character Evidence: Jury “Must” Consider
    251.4.2.5 Defense Theory That Good Character Of Defendant Is Inconsistent With Assaultive Or Malicious Intent
    251.4.2.6 Defense Theory: Defendant's Personality Or Nature Is Inconsistent With A Required Element Of The Charge
    251.4.2.7 Defendant’s Good Character: Defendant Has No Burden Of Producing Evidence Or Calling Witnesses
    251.4.2.8 Improper For Prosecutor To Assume Defendant Is Guilty When Cross-Examining Good Character Witness
    251.4.2.9 Good Character Evidence: Right To Expert Testimony That Defendant Is Not Deviant Or Abnormal

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PRACTICE NOTE: It has been held to be reversible error to refuse to give a good character instruction when requested by the defendant. (See e.g., U.S. v. Daily (10th Cir. 1991) 921 F2d 994, 1014-1015 [refusal to instruct the jury on the significance of good character evidence was plain error which required reversal]; Gooch v. State (MD 1976) 367 A2d 90, 92 [accused has right to present evidence of good character; State v. Demmings (MN 1976) 246 NW2d 31, 34 [trial court required to instruct on defendant’s good character when requested]; Wells v. State (NE 1950) 42 NW2d 363; State v. Green (SC 1982) 294 SE2d 335 [defendant entitled, on request, to instruction that good character may in and of itself create a doubt as to guilt and should be considered by jury, along with all other evidence].)

    Hence, U.S. v. Darland (5th Cir. 1980) 626 F2d 1235, 1238 held that it can be plain error to refuse this instruction when the defendant offers evidence of good character; and, further, the admission of such evidence may not be conditioned on the defendant testifying as a witness.

See generally, FORECITE National™ 305.4.3 [Defendant's Character].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].

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RATIONALE: A defense theory which relies on the good character of the defendant is unique in that it does not directly contradict the prosecution evidence. Therefore, the jury may not understand that it may rely on the defendant’s good character, even if no other defense evidence is presented and/or credited, to conclude that the prosecution has failed to meet its burden of proving guilt beyond a reasonable doubt.

POINTS AND AUTHORITIES: The United States Supreme Court has long recognized the unique nature of a defense to a criminal charge which is based on the good character of the defendant. "Whatever may have been said in some of the earlier cases, to the effect that evidence of the good character of the defendant is not to be considered unless the other evidence leaves the mind in doubt, the decided weight of authority now is that good character, when considered in connection with the other evidence in the case, may generate a reasonable doubt. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although, without it, the other evidence would be convincing." (Edgington v. U.S. (1896) 164 US 361, 366 [17 SCt 72; 41 LEd2d 467].)

    Again in a later case the Court said that "such testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt and that in the federal courts a jury in a proper case should be so instructed." (Michelson v. U.S. (1948) 335 US 469, 476 [69 SCt 213; 93 LEd 168].) 

    Hence, it has been held that, in the appropriate circumstances, the jury should be instructed that evidence of good character, standing alone, may generate a reasonable doubt. (See U.S. v. McMurray (10th Cir. 1980) 656 F2d 540, 551; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 15.15 [Character Evidence Reputation Of The Defendant] (West, 5th ed. 2000); Hrones & Czar, Criminal Practice Handbook (Lexis, 1995 (1998 Supp.) § 5-17(b)(1) Inst. No. 9; see e.g., PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 3.06 [Defendant’s Character (Reputation)] ¶ 3 (Pennsylvania Bar Institute, PBI Press, 09/95); Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS 8 VIII(B) Inst [Good Character Of Defendant] p. 380 (South Carolina CLE, 1994); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-15-3 [Character And Reputation Of Defendant] ¶ 2, sent. 1 (State Bar of South Dakota, 1996); CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.42 [Character And Reputation Of Defendant] ¶ 2, sent. 2 (Bar Association of the District of Columbia, 4th ed. 1993); CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.40 [Traits Of Character Of Defendant] ¶ 1; 2.40 [Traits Of Character Of Defendant] ¶ 2 (West, 6th Ed. 1996); NEW JERSEY MODEL JURY CHARGES - CRIMINAL [II Other Non-2C Charges: Testimony of Character Witness] ¶2 (New Jersey ICLE 4th ed. 1997).)

    Some jurisdictions have limited the use of the "standing alone" instruction. (See e.g., U.S. v. Burke (7th Cir. 1985) 781 F2d 1234, 1238-42; see also U.S. v. Pujana-Mena (2nd Cir. 1991) 949 F2d 24, 27-28 [reviewing federal circuits and observing that only the D.C. Circuit "mandates" a "standing alone" instruction].) However, even where the instruction is not always given, it is often recognized that the "standing alone" language may be appropriate when special circumstances are present such as the defendant’s total reliance on good character evidence. (See e.g., U.S. v. McMurray (10th Cir. 1980) 656 F2d at 551; see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.06 [Character And Reputation Of Defendant] (1999) Committee comment ["Many of the other circuits also recognize that there may be situations in which the [standing alone] instruction can be used, and may be necessary. [Citations.]"]; Edgington v. U.S. (1896) 164 US 361, 367 [17 SCt 72; 41 LEd 467] [good character evidence of the defendant "is not proof of innocence, although it may be sufficient to raise a doubt of guilt"]; U.S. v. Pujana-Mena (2nd Cir. 1991) 949 F2d 24, 27-28 [no absolute right to "standing alone" instruction except in D.C. Circuit]; see also State v. Green (SC 1982) 294 SE2d 335; see also State v. Micci (NJ 1957) 134 A2d 805, 808.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.3].

USE NOTE: If the standing alone instruction is not given an alternative is to relate good character evidence to the prosecution's burden. (See FORECITE National™ 251.4.2.3 [Relating Good Character Evidence To Prosecution's Burden].)

PRACTICE NOTE: Regardless of what type of good character instruction is given, if any, defense counsel should be allowed to argue to the jury that such evidence "standing alone" may itself be the defense theory and the basis for a reasonable doubt and a not guilt verdict. (See FORECITE National™ 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

*CAVEAT: It is also important for the jury to understand that use of the phrase "create a reasonable doubt," "raise a reasonable doubt," or the like, does not impose any burden on the defendant. Rather, the character evidence does not technically "raise" or "create" a reasonable doubt but is evidence which convinces the jury that the prosecution did not meet its burden of proving guilt beyond a reasonable doubt. (See FORECITE National™ 270.3.4 [Improper To State That Defendant Must "Raise" Or "Create" A Reasonable Doubt].)

RESEARCH NOTES:

Wharton’s Criminal Evidence 4:18, pp. 335-50 (West, 14th ed. 1986).

Wharton’s Criminal Procedure 469 (West, 13th ed.).

See generally, FORECITE National™ 305.4.3 [Defendant's Character].

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].

[Cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 3.06 [Defendant’s Character (Reputation)] ¶ 3 (Pennsylvania Bar Institute, PBI Press, 09/95).]

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS 8 VIII(B) Inst [Good Character Of Defendant] p. 380 (South Carolina CLE, 1994).]

[Source: FORECITE National™.]

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RATIONALE: Even if the jury is not instructed that good character "standing alone" may be the basis for a reasonable doubt as to guilt, the defendant should have the right to relate the good character evidence to the prosecution’s burden of proof so that the jury understands the proper role of the good character evidence.

POINTS AND AUTHORITIES: It is axiomatic that the jury may rely on the defendant’s good character to conclude that the prosecution has failed to meet its burden of proof even though the good character evidence does not directly refute or negate the prosecution’s evidence. (See FORECITE National™ 251.4.2.5 [Defense Theory That Good Character Of Defendant Is Inconsistent With Assaultive Or Malicious Intent]; see also Mitchell v. Commonwealth (VA 1925) 127 SE 368, 375 ["...a man’s character may be shown to be so good as to overcome positive evidence of his connection with the crime, and cause the jury to believe that there was some mistake or error as to the positive evidence"].)

    Hence, when this is the theory of the defense, the defendant should have the right to have the jury instructed on this theory. (See FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].) Such an instruction should clearly convey to the jury its right and ability to find the defendant not guilty based on its consideration of the good character evidence. If the "standing alone" language is not used, a middle-ground approach utilized by some jurisdictions is to simply instruct the jury that good character may give rise to a reasonable doubt. (See e.g., 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.09 [Character Evidence] (2001); see also U.S. v. McMurray (10th Cir. 1980) 656 F2d 540, 551 [effect of instruction on character evidence was to communicate to jury that good reputation was capable of generating a reasonable doubt and, hence, instruction was not erroneous as failing to specify that good character "alone" was sufficient to raise a reasonable doubt]; Freeman v. State (AK 1971) 486 P2d 967, 972-973.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.3].

* CAVEAT 1: See FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].

** CAVEAT 2: It is also important for the jury to understand that use of the phrase "create a reasonable doubt," "raise a reasonable doubt," or the like, does not impose any burden on the defendant. Rather, the character evidence does not technically "raise" or "create" a reasonable doubt but is evidence which convinces the jury that the prosecution did not meet its burden of proving guilt beyond a reasonable doubt. (See FORECITE National™ 270.3.4 [Improper To State That Defendant Must "Raise" Or "Create" Reasonable Doubt].)

See generally, FORECITE National™ 305.4.3 [Defendant's Character].

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].

    Where a defendant has offered evidence of good general reputation for truth and veracity, or honesty and integrity, or as a law abiding citizen, you should* consider such evidence along with all the other evidence in the case.

    Evidence of a defendant’s reputation, inconsistent with those traits of character ordinarily involved in the commission of the crime charged, may give rise to** a reasonable doubt, since you may think it improbable that a person of good character in respect to those traits would commit such a crime.

* See CAVEAT 1.

** See CAVEAT 2.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.09 [Character Evidence] ¶ 1-2 (2001).]

    In deciding whether the prosecution has proved the defendant guilty beyond a reasonable doubt consider any evidence of the defendant's good character.  You may rely on such evidence [standing alone] to return a verdict of not guilty.

[Cf. ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS 1.26 [Evidence Of Defendant’s Character] ¶ 3 (Alaska Bar Association, 1987).]

    In determining whether the prosecution has proved the defendant guilty beyond a reasonable doubt consider all the evidence, including the defendant's good character and/or reputation. If, after such consideration, you have a reasonable doubt of defendant's guilt, you must give the defendant the benefit of that doubt and vote to return a verdict of not guilty.

[Cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL [II Other Non-2C Charges: Testimony of Character Witness] ¶ 2 (New Jersey ICLE 4th ed. 1997).]

    The defense presented evidence of the defendant's character. Such evidence may leave you with a reasonable doubt as to the defendant's guilt.

    Where a defendant offers evidence that (he/she) is an honest and law-abiding citizen, consider that testimony, along with all the other evidence, in deciding whether the prosecution has proved beyond a reasonable doubt that the defendant committed the crime charged.

[Source: Adapted from 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Inst.11 [Character Evidence] (1997).]

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RATIONALE: Most standard pattern instructions inform the jury that it "should" consider evidence of defendant’s good character. However, such instructions may mislead the jury into believing that it need not consider the good character evidence. While the jury has no obligation to accept or credit such evidence, it is obligated to consider it.

POINTS AND AUTHORITIES: By using the term "should" instead of "must," an instruction effectively informs the jury that "while it is recommended that it consider the defense evidence, it is not obligated to do so." Obviously it would violate the defendant's constitutional rights for the jury to not at least consider defense evidence or a defense theory. (See FORECITE National™ 250.1.4 [Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction].)

    It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to raise a reasonable doubt as to any element of the charge. (See e.g., Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Martin v. Ohio (1987) 480 US 228, 233-234 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self defense evidence in determining whether there was a reasonable doubt about the State's case would violate In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297]; People v. Bobo (CA 1990) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]; see also FORECITE National™ 250.1.4 [Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction].)

    Accordingly, a good character instruction is defective in that it informs the jury that consideration of the good character evidence is permissive ("you should consider...") rather than mandatory ("you must consider"). To assure the defendant's constitutional right to consideration of all the evidence, the jury should be instructed that it "must" consider the good character evidence.

    See also FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].

    See also FORECITE National™ 256.6.1.6 [Voluntary Intoxication: Jury "Must" Consider].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.1].

See generally, FORECITE National™ 305.4.3 [Defendant's Character].

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].

    The defendant has called witnesses who have given their opinion of his good character. This testimony is not to be taken by you as the witness' opinion as to whether the defendant is guilty or not guilty. That question is for you alone to determine. You must, however, consider this character evidence together with all the other evidence in the case in deciding whether the defendant has been proven guilty beyond a reasonable doubt.

[Source: FORECITE National™.]

    You must consider all the relevant evidence, including that related to the defendant’s good character or reputation. If after such consideration, there exists a reasonable doubt of (his/her) guilt, even though that doubt may arise merely from (his/her) previous good repute, (he/she) is entitled to an acquittal.

[Source: FORECITE National™.]

    You have heard [reputation/opinion] evidence about the character trait of ____________ for truthfulness [or untruthfulness]. You must consider this evidence in deciding the weight that you will give to ____________’s testimony.

[Source: FORECITE National™.]

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RATIONALE: While character evidence often goes to the question of whether the defendant committed the act constituting the offense, evidence of a peaceful character may also negate the required assaultive intent required for some offenses.

PRACTICE NOTE: The defendant’s character trait of peacefulness is relevant to the issue of whether the defendant formed or had the capacity to form the intent to commit an assaultive crime. (See e.g., State v. Eakins (WA 1995) 902 P2d 1236, 1241.)

See generally, FORECITE National™ 305.4.3 [Defendant's Character].

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].

    The defendant has presented evidence for the purpose of showing his peaceful or nonaggressive character. You must consider that evidence, with all the other evidence, in deciding whether the prosecution has proved beyond a reasonable doubt that the defendant formed _______ (insert required mental state e.g., intent to kill) required for the crime of _________ (insert charged offense).

[Source: FORECITE National™.]

    It is [a] [the] defense theory that the defendant has a peaceful or nonassaultive character that is inconsistent with the [intent to _____________] [mental state of ________________] required for the crime of __________________.

    If after considering this evidence, together with all the other evidence, you have a reasonable doubt that the defendant had the required [intent] [mental state], you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

[Source: FORECITE National™.]

    This evidence regarding the defendant's character trait of _____________ was received because you may infer that a person of good character as to such a trait would not be likely to commit __________ (insert name of offense(s)).

[See generally State v. Eakins (WA 1995) 902 P2d 1236, 1241; cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 310.40 [Character: Traits Of Character of Defendant Bearing On Guilt Or Innocence] sent. 2 (Missouri Supreme Court Publications, 3rd ed. 1987).]

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PRACTICE NOTE: See U.S. v. Rahm (9th Cir. 1993) 993 F2d 1405, 1409-12 [error to exclude expert psychiatric testimony that defendant tended to "overlook important details" in support of defense that defendant did not notice currency was counterfeit].

    See also FORECITE National™ 251.4.2.3 [Relating Good Character Evidence To Prosecution's Burden].

    See also FORECITE National™ 251.5.1 [Defendant's Lack Of Desire Or Ability To Have Sexual Intercourse As Defense To Sex Offense].

See generally, FORECITE National™ 305.4.3 [Defendant's Character].

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].

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RATIONALE: Because good character evidence is typically presented by the defendant and evaluated by the jury to decide its believability and weight, there may be a tendency on the part of the jury to assume, either consciously or unconsciously, that the defense has some burden of proof in this regard. Accordingly, an instruction on character evidence, should remind the jury that the defendant has no burden or duty regarding the calling of witnesses or producing of evidence.

POINTS AND AUTHORITIES: In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.09 [Character Evidence] § 1 and 3 (2001).

    See also FORECITE National™ 251.4.2.3 [Relating Good Character Evidence To Prosecution's Burden].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.3].

See generally, FORECITE National™ 305.4.3 [Defendant's Character].

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].

SAMPLE INSTRUCTION # 1:

    [To be added to good character evidence instruction]

    You will always bear in mind, however, that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.09 [Character Evidence] § 3 (2001).]

    The fact that the defendant has presented good character evidence does not impose any burden on the defendant. You must consider the defendant's good character evidence along with all the other evidence in deciding whether the prosecution has met its burden of proving guilt beyond a reasonable doubt.

[Source: Adapted from 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Inst.11 [Character Evidence] ¶ 2 (1997).]

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PRACTICE NOTE: It is improper for the prosecutor to cross-examine defense character witnesses in a manner that assumes that the defendant is guilty of the charged offense. That is, the prosecutor may not ask hypothetical questions to a defense character witness, stating facts as alleged by the prosecution and asking whether the witness would have the same view of the defendant’s character assuming the truth of the hypothetical. (See U S. v. Oshatz (2nd Cir. 1990) 912 F2d 534, 539-40; U.S. v. Mason (4th Cir. 1993) 993 F2d 406, 408 [guilt-assuming hypotheticals improper whether good character witness offers personal opinion or reputation evidence]; U.S. v. Siers (4th Cir. 1989) 873 F2d 747, 749; U.S. v. Candelaria-Gonzalez (5th Cir. 1977) 547 F2d 291, 994-95; U.S. v. McGuire (6th Cir. 1984) 744 F2d 1197, 1204-05; U.S. v. Williams (7th Cir. 1984) 738 F2d 172, 176-77; U.S. v. Barta (8th Cir. 1989) 888 F2d 1220, 1224-25; U.S. v. Page (10th Cir. 1987) 808 F2d 723, 731-32.)

    Allowing the prosecutor to ask hypothetical questions which assume the guilt of the defendant assumes "away the [defendant’s] presumption of innocence." (U.S. v. Williams (7th Cir. 1984) 738 F2d 172, 177.)

Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 43:3.

See generally, FORECITE National™ 305.4.3 [Defendant's Character].

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].

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PRACTICE NOTE: When the expert character testimony is central to the defense, the defendant has the right to present expert testimony that he or she is not deviant or abnormal. (People v. Stoll (CA 1989) 49 C3d 1136, 1152-53 [265 CR 111]; see also People v. Ruiz (CA 1990) 222 CA3d 1241, 1243-46 [272 CR 368].) Exclusion of such evidence violates the defendant's federal constitutional rights to due process, compulsory process and confrontation under the 6th and 14th Amendments of the federal constitution. (See e.g., Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; Chambers v. Mississippi (1973) 410 US 284, 302 [93 SCt 1038; 35 LEd2d 297]; People v. Roberts (CA 1992) 2 C4th 271, 302 [6 CR 276].)

    See also FORECITE National™ 256.7.1.5 [Expert Testimony Regarding Defendant's Formation Of Mental State].

    See also FORECITE National™ 301.8.4 [Defendant Has Due Process Right To Assistance Of Expert].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.3 [Defendant's Character].

See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].

See generally FORECITE National™ 251.4.1.3 [Good Character Of Defendant: Federal Model Instructions].