THE ADMISSIBILITY (AND INADMISSIBILITY) OF CHARACTER EVIDENCE

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        I. Why do we have special evidentiary rules governing character evidence?

        We use our assessment of other people's character routinely in our daily lives when making such decisions as whether to eat in a person's restaurant, enter into a business transaction with him, or let him extract one of our teeth. Our assessment of a person's character powerfully affects what we believe he or she will do or has done.

        The word “character” refers to the kind of person one actually is. The term can be used in a general sense, as in “a person of noble character,” or in a more specific way to describe a person's tendency to act a certain way in particular situations, as in “the kind of guy who'll fleece you out of a nickel if he gets the chance.”

        Other than our personal experiences, there are three possible sources from which we can acquire information upon which to base our inferences about another's character. First and most persuasive is specific information about the person's previous behavior. Second is the opinion of another person. Third is the person's reputation in the community.

        When we move from everyday life into a courtroom, we must consider the extent to which we should allow evidence of a person's character to be used against him or her. Any of the three above sources of information could constitute evidence of a person's character if allowed. As we discuss the rules governing the admissibility of character evidence, it is important to keep these three kinds of evidence in mind because the rules differ with regard to which, if any, of these three methods of proving character may be used.

        Although we consider character as a matter of course in our everyday lives, a trial presents a unique situation in which basing a decision on a person's character may lead to injustice. Our system of justice is based on the premise that a person should be held guilty or liable only if he or she committed the act with which he or she is charged--not because of the kind of person he or she is. The most despicable person should be found not guilty or not liable if he or she did not do what he or she is accused of and the paragon of virtue should be convicted or held liable if he or she committed a crime or civil wrong. Because jurors, like all of us, are so accustomed to considering character when making decisions it is highly likely that they will do so if they hear that evidence. Therefore, the Rules of Evidence place special restrictions on the introduction of character evidence.

         II. What does the term “character evidence” mean?

        “Character evidence” is evidence from which an inference may be drawn concerning a person's propensity to act a certain way. If the evidence is offered to support an argument that a person acted on the occasion in question in accordance with his usual way of acting, the rules governing admissibility of character evidence apply. The argument would go something like this: “George is the kind of guy who has a tendency to rob liquor stores. Therefore, ladies and gentlemen, you may consider his propensity to rob liquor stores as evidence that George robbed Herman's Liquor Store on the night of July 12, 2012.”

        Remember, “character evidence” is generally prohibited only if it is offered solely for the purpose of proving propensity to act a certain way. If it is offered for any purpose other than propensity the rules governing “character evidence” do not apply.

         III. The general rule: “character evidence” is not admissible if offered to prove propensity to act. The first clause of Rule 404(a) and the first sentence of Rule 404(b).

        Because it is highly likely that jurors will place undue emphasis on the character of a defendant in determining guilt or liability, the law of evidence places a general ban on evidence of a person's character when it is introduced to show that the person acted in accordance with his or her usual way of acting. This ban is found in the Arkansas Rules of Evidence in the first clause of Rule 404(a) and reinforced in the first sentence of Rule 404(b). Section 404(a) states:

 (a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particularly occasion ... [subject to exceptions which I shall discuss later].

       Section 404(b) restates the prohibition, but applies it only to specific act evidence:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.

       Because of the narrow scope of the rules prohibiting character evidence, it is first necessary to determine whether an item of evidence is offered for the purpose of proving propensity to act in accordance with the character trait. Many matters that would be excluded if they were offered to prove propensity may be admissible if they are offered for any purpose other than to prove propensity. If evidence is offered for any other purpose the court weighs its probative value pursuant to Rules 401 and 402 against its tendency to prejudice the jury (or its other negative effect *11 on the trial) pursuant to Rule 403. Consequently, the first question a lawyer must address is whether an item of evidence is actually offered to prove propensity.

         IV. Things that look, smell and taste a lot like propensity evidence, but are not.

        Evidence that may seem to be propensity evidence at first glance but is not falls into two categories: (1) when character itself is an essential element in the case, and (2) when character is not an essential element, but the evidence is offered to prove something other than propensity.

         (a) When character itself is an essential element.

        “Character evidence” is prohibited only when it is offered as circumstantial proof to support an inference that a person acted in conformity with that trait of character. In that case, the person's character is not an element that must be proved. Rather, it is merely an inference in a chain from which action may be inferred.

        On the other hand, when a person's character is itself the element to be proved, the evidence of her character constitutes direct proof of that element and does not fall under the special rules governing “character evidence.” When character is the element to be proved, the regular rules of relevance [FN1] and negative effect [FN2] govern, leaving the admissibility decision wholly to the discretion of the trial judge. An example of “character in issue” arises when negligent entrustment is pleaded in an automobile case. The driver's ““character” (defined as a propensity to drive unsafely) is an element that must be proved. [FN3]

        When character is itself an element that must be proved, any of the three methods of proving it (specific instances, opinion, and reputation) may be utilized. [FN4]

        It is worth noting that a person's “reputation,” as distinguished from her actual character, may be an element, as in a defamation case where the plaintiff's reputation is an element that must be proved in order to establish injury to that reputation. In such a case the rules governing character evidence do not apply.

         (b) Evidence of specific instances of conduct offered to prove something other than propensity to act the same way. Rule 404(b).

        Rule 404(b) is probably the subject of more litigation than any other evidence rule. It comes into play when character is not an element that must be proved, but a parry nevertheless offers evidence of a person's conduct on occasions that are not a part of the present action. Rule 404(b) states unequivocally in its first sentence that evidence of other acts is not admissible to prove propensity. But the Rule goes on to state:

It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

       Note that the Rule says the evidence may be admitted, not that it shall be admitted. Even after the proponent of the evidence puts forth a legitimate, non-propensity purpose for offering the evidence (thus getting past the general ban on character evidence) the court has discretion under Rule 403 to exclude the evidence if it determines that the evidence's negative effect substantially outweighs its probative value.

        The danger of admitting such evidence is that the jury will inevitably consider it for the forbidden propensity purpose no matter what other purpose it is offered for and no matter what limiting instruction the court gives. It is virtually impossible for the jurors to set aside all of their life experiences and refrain from using the evidence, at least unconsciously, for the forbidden inference of consistent action on the occasion in question. In order to minimize this danger, when evidence of other acts is admitted for a non-propensity purpose the opponent of the evidence is entitled to a cautionary instruction to the jury if he or she requests it. [FN5]

       Whenever “other acts” evidence is offered, the opponent should object that it constitutes inadmissible character evidence. The proponent must then respond to the objection by stating the non-propensity purpose for which the evidence is offered. Once the response is stated Rule 404(b) is satisfied. However, the proponent of the evidence is not *12 yet home free. The court must now exercise its discretion under Rule 403 and weigh the evidence's probative value on the non-propensity issue against the danger that the evidence may be used by the jury to draw the forbidden propensity inference. Unless the court finds that the danger of prejudice or other negative effect substantially outweighs the evidence's probative value on the non-propensity issue, the evidence should be admitted.

        Rule 404(b) states broadly that the evidence may be admissible for “other purposes.” Then it gives us a “such as” laundry list of examples. Several of the examples on the laundry list sound suspiciously like propensity. For instance, where intent is in issue, the argument could be, “Because Adam intentionally stabbed someone before, you can infer that he is the sort of person who has a propensity to stab intentionally, therefore it is more likely that he intentionally stabbed Bobby on the occasion in question.” Why is this not prohibited by Rule 404(b)? The answer lies in the language of Rule 404. The Rule prohibits evidence that a person acted in accordance with the propensity, not that he had a particular state of mind. Therefore, when a person's state of mind is the issue, proof of his or her other acts that go to prove the existence of that state of mind may be admissible under Rule 404(b).

        Note that in a federal criminal trial the prosecution is required, upon request by the defendant, to give reasonable notice of its intention to offer 404(b) evidence. [FN6]

        In a federal case where the defendant is accused of sexual assault or child molestation, either criminal or civil, the court is permitted to admit evidence of the defendant's similar acts to “be considered for any matter to which it is relevant.” [FN7] These provisions override Rule 404(b) in those cases. Therefore, in these federal cases because the other act evidence, if admitted, may be considered for any relevant purpose, it may be considered for propensity.

         V. How can propensity be proved if allowed?

        The rules that generally ban propensity evidence are not absolute. Even if evidence is offered solely to prove propensity, the rules that generally ban character evidence are subject to exceptions. Let us consider the types of proof that may be available to prove propensity when one of the exceptions applies.

        As I discussed earlier, information that can form the basis for an inference about another's character can come from three sources: (1) that person's actions, (2) another person's opinion of his character, or (3) information about his reputation. Each of these sources of information constitutes a type of evidence that could be used as proof of his character if allowed by the Rules.

        We need to keep these three types of evidence in mind as we discuss the exceptions to the general exclusionary rule because the exceptions treat each type of evidence differently.

         VI. The exceptions to the general rule barring introduction of propensity evidence.

        Let us assume that evidence is offered to prove propensity. Rule 404(a) contains three exceptions to the general rule prohibiting introduction of such evidence. Two of them exist only for the benefit of criminal defendants. The third is available to any party in either a criminal or civil case, but is limited to proof of one issue--the truthfulness of witnesses. In the following sections I shall discuss each of these exceptions and the types of evidence that may used to prove each.

         (a) The exceptions that apply only in criminal cases. Rules 404(a)(1) and 404(a)(2).

         (1) Character of the accused in a criminal case. Rule 404(a) 1).

        This exception is sometimes referred to as the “mercy rule.” Much is at stake in a criminal case. The defendant may lose her life or her freedom and the law has long recognized that criminal defendants come to the courtroom with the deck stacked against them, no matter how the jury is instructed on the presumption of innocence. Consequently, the law cuts a criminal defendant some slack, granting her two exceptions to the rule barring propensity evidence.

        The first is the option to offer evidence of a pertinent trait of her own character. For example, in a case involving a violent act, the criminal defendant may offer evidence to show that she is a person of peaceful character. [FN8] She may not, however, utilize all of the three methods of proof. She is limited to opinion or reputation testimony. She may not introduce evidence of her specific other acts. [FN9]

        Despite the possible benefit to the defendant afforded by this exception, the defendant's decision to “place her character in issue” may have negative consequences. By presenting this opinion or reputation testimony she opens the door for the prosecutor to introduce like evidence to rebut it. [FN10] Further, the prosecutor is allowed to cross-examine her character witnesses regarding her other specific acts in order to test the reliability of the witness's opinion or the accuracy of the reputation.

        Let us assume a case in which the defendant is accused of a violent act where the prosecutor would not be allowed to introduce evidence of an unrelated violent act. If the defendant introduces opinion or reputation evidence that she is a person of peaceful character, the prosecutor may not only call his own character witnesses to give their own opinions or to give reputation testimony that contradicts the testimony of her witnesses, he may also crossexamine her character witnesses concerning their knowledge of her other, unrelated violent acts that would otherwise be inadmissible. For example the prosecutor could ask, “In forming your opinion of the defendant's peaceful character, did you know that she assaulted Billy Joe with a knife in Myrtle's Bar & Grill last July 23?”

         (2) Reputation of the alleged victim in a criminal case. Rule 404(a)(2).

        The criminal defendant also has the option to offer evidence of a pertinent character trait of the purported victim. This issue arises most *14 often when a defendant pleads self-defense and offers evidence that the alleged victim had a violent character. As is the case when the defendant offers evidence of her own character, she is limited by Rule 405(a) to opinion or reputation testimony. By introducing this evidence, she opens the door to rebuttal evidence by the prosecution, including inquiry on cross-examination of her character witnesses into specific instances of the alleged victim's conduct.

        Further, in homicide cases, whenever the defendant introduces evidence that the victim was the first aggressor--any kind of evidence, not just character evidence (for example, testimony of an eyewitness)--the prosecution may offer opinion or reputation evidence of the peaceful character of the alleged victim. [FN11]

        In federal court there is an additional disadvantage of offering evidence of the alleged victim's character. Not only may the federal prosecutor offer rebuttal evidence concerning the alleged victim's character, he may also offer evidence that the defendant has that same character trait. [FN12]

        It should also be noted that this exception is overridden in Arkansas criminal prosecutions for rape or incest by the so-called “rape shield law,” which provides special rules restricting evidence of the alleged victim's prior sexual conduct. [FN13] The Federal Rules of Evidence also contain a somewhat similar “rape shield” provision, which applies in all cases involving alleged sexual misconduct, both criminal and civil. [FN14] A discussion of the provisions of the rape shield laws is beyond the scope of this article.

         (b) The exception that applies when evidence is offered to show a witness's propensity to lie. Rules 404(a)(3), 607, 608, and 609.

        Whenever a witness takes the stand, a new issue is added to the case--the witness's credibility. Credibility may be tested in several ways. For example, the opponent may offer evidence to contradict the witness, introduce the witness's prior inconsistent statements, or attempt to show that the witness is biased. In addition to other means of attacking a witness's credibility, the opponent may attempt to show that the witness is a liar. This is pure propensity evidence--the evidence is offered to support an inference that the witness has a propensity to lie from which jurors may conclude that she lied in this case.

        Rule 404(a)(3) is the exception to the general ban on propensity evidence that allows lawyers to do this. Rule 404(a)(3) states the exception this way:

Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

     Let me emphasize that unlike the first two exceptions this exception applies to every witness and is available to all parties in both civil and criminal cases.

        Rule 404(a)(3) refers us to Rules 607, 608, and 609. Rule 607 is the rule that allows us to impeach our own witnesses. It is included in Rule 404(a)(3) simply to make clear that we may use propensity evidence, as well as other methods of impeachment, to impeach our own witnesses.

        Rules 608 and 609 impose limits on the kinds of evidence we may use to support the argument that a witness has the character trait of being an untruthful person. Rule 608(a) governs the admissibility of opinion and reputation evidence of a witness's untruthful character. Rule 608(b) governs the admissibility of evidence of specific instances of a witness's conduct relating to character for untruthfulness.*15 Rule 609 governs the types of criminal convictions that may be used to support an inference that a witness is a liar. Let us discuss each of these rules separately. [omitted because you already know the impeachment rules]

         VII. Conclusion

        The ancient Greek philosopher Heraclitus said that “a man's character is his fate.” Certainly, the kind of person one is powerfully affects the way people treat him or her. We base our assessments of other people's likely behavior on what we know of their usual behavior all the time and a person's character is quite often an accurate indicator of his or her actual conduct on a specific occasion.

       Yet, despite character's indisputable relevance as a predictor of specific behavior, we are quite cautious about allowing a jury to hear evidence of a person's character. What if the person did not act as we would expect him or her to act? What if the chronic speeder was driving slowly at the time? What if the confirmed saint sinned on the occasion in question? There is an inordinate danger that a jury may decide guilt or innocence, liability or faultlessness, on the basis of a person's character, rather than upon evidence of what he or she actually did. Because of this danger the law of evidence contains stringent restrictions upon the circumstances under which we may introduce evidence of a person's character. I hope this walk through the rules surrounding character evidence proves useful.

[FNa1]. Dent Gitchel is an Emeritus Professor at the William H. Bowen School of Law at the University of Arkansas at Little Rock and a member of the Arkansas Bar for over 40 years.

[FN1]. ARK. R. EVID. 401 and 402.; [FN2]. ARK. R. EVID. 403.; [FN3]. See Pace v. Davis, 2012 Ark. App. 193, 2012 WL 723228.; [FN4]. ARK. R. EVID. 405.; [FN5]. ARK. R. EVID. 105.; [FN6]. FED. R. EVID. 404(b)(2).; [FN7]. FED. R. EVID. 413, 414, and 415.; [FN8]. ARK. R. EVID. 404(a)(1).; [FN9]. ARK. R. EVID. 405(a).; [FN10]. ARK. R. EVID. 404(a)(1).; [FN11]. ARK. R. EVID. 404(a)(2), 405(a).

[FN12]. FED. R. EVID. 404(a)(2)(B)(ii).; [FN13]. ARK. CODE ANN. § 16-42-101.; [FN14]. FED. R. EVID. 412.; [FN15]. Edwards v. Campbell, 2010 Ark. 398, 2010 WL 4232715; Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982); James v. State, 274 Ark. 162, 622 S.W.2d 669 (1981).; [FN16]. ARK. R. EVID. 609(e).