Introduction of Evidence of Character to Prove Conduct Pursuant to Fed.R.Evid. 404(A) and 405: Is It Worth the Candle to the Accused?

Abstract

In criminal cases, Fed.R.Evid. 404(a)(1) provides that the prosecution may not in the first instance introduce evidence of a pertinent character trait of the accused as part of the case in chief against him. By longstanding tradition the unfair prejudice to the defendant in being portrayed as a "bad man" is felt to substantially outweigh any probative value the evidence might possess.

Thus, the jury is required to determine a defendant's guilt or innocence of the crime charged solely on the basis of evidence relevant to that particular crime. A jury may not convict because it believes the defendant to be a person of bad character or because of a notion that since he committed some other crime, he must also have committed the crime for which he is being tried.

On the other hand, the accused in the first instance may offer proof as to a pertinent trait of his character. If he does, the prosecution may then offer evidence as to the same character trait by way of rebuttal, Fed.R.Evid. 404(a)(1).

On cross-examination of a witness who has testified as to the reputation of another with respect to a pertinent character trait, inquiry is of course proper with respect to with whom, where and when the reputation was actually discussed and the nature of the relationship with the person about whom testifying. Similar exploration on cross-examination of the bases of a witness who testifies in the form of an opinion is proper. Under Fed.R.Evid. 405(a) specific instances of relevant conduct and rumors and reports thereof including convictions and arrests may be brought out on cross-examination.

Relevant specific instances of conduct include, but are not limited to, those for which there has been a conviction or an arrest; specific instances of conduct which are not criminal may also be relevant. The specific instances of conduct must relate to reputation or opinion at the time of the act in question rather than at trial. Lack of familiarity with such matters or rumors or reports thereof is relevant to an assessment of the basis of the character witness' testimony. Familiarity with such matters or rumors or reports thereof explores the character witness' standard of "goodness" and "badness." The cross-examiner must possess a good faith basis for inquiry. The good faith basis clearly refers to the existence of the act in question when inquiry is as to knowledge.

Whether the defendant in a criminal case chooses to exercise his right to get the ballgame started by calling a reputation or opinion character witness as to the pertinent character trait of the accused depends upon an assessment of the likely positive aspects of such testimony upon the jury in comparison to the negative aspects associated primarily with the cross-examination of such character witness as to relevant specific instances of conduct by the defendant. Complicating the decision is the possibility that even if the defendant were to testify, the jury may very well not otherwise hear of such prior bad acts of the accused.

It is suggested that many criminal defense attorneys believe that unless either your character witness is a Coach Bowden and/or there is no good faith basis upon which to cross-examine the character witness as to damaging relevant specific instances of conduct, the calling the character witness is simply, “Not Worth The Candle!” ]