Federal Criminal Practice Seminar
Nov 2, 2012
Raleigh, NC
© 2012

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“Character” evidence is admissible in a criminal case when:
Character is an “essential element of a charge, claim or defense.” FRE 405(b)
The accused offers his own character as a defense to the crime charged. FRE
404(a)(2)(A)
The accused offers the victim’s character
FRE 404(a)(2)(B); subject to FRE 412
In a homicide case the gov’t offers V’s character for peacefulness to rebut D’s claim that V was first aggressor. FRE
404(a)(2)(C)

“Character” evidence is admissible in a criminal case when:
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The accused is charged with sexual assault or child molestation. FRE 413-414
Impeach/rehabilitate a witness’ character for truthfulness. FRE 404(a)(3); 608-609

“Character” as an essential element
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The substantive law makes a trait of character an essential element
Not a propensity use
Prove by specific acts, opinion, and/or reputation. FRE 405
Jacobson v. U.S., 503 U.S. 540 (1992)(When defendant claims entrapment, gov’t must prove beyond reasonable doubt that defendant was
“predisposed to commit the criminal act prior to first being approached by government agents.”)

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Accused may offer a “pertinent trait” of character as a defense, but gov’t can rebut.
FRE 404(a)(2)(A)
Prove by opinion and/or reputation, but not specific acts. FRE 405(a)
US v MacDonald, 485 F. Supp. 1087, 1094
(EDNC 1979), aff’d 688 F.2d 224 (4 th Cir. 1982) excluding defense psychiatric testimony under
FRE 403 because “Numerous lay witnesses most of whom were highly intelligent and articulate, professional and business people, had already testified to the defendant's character traits of peacefulness, non-violence, rationality and compassion for his fellow man.”

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“Character” of the accused charged with sexual assault or child molestation
FRE 413 & 414 allow prosecution to offer specific acts to prove defendant’s propensity to commit crime charged.
FRE 403 is still applicable, but the propensity argument enhances the probative value, not the prejudicial effect.
US v. Kelly, 510 F.3d 433, 438 (4 th Cir.
2007)(While the prior conviction [for child rape] was undoubtedly prejudicial to Kelly's defense, it was not unfairly prejudicial. Rather, it was prejudicial “for the same reason it is probative— it tends to prove [the defendant's] propensity to molest young children.”

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Accused can offer “pertinent trait” of victim’s character, subject to FRE 412.
FRE 404(a)(2)(B)
Placing victim’s character in issue by accused opens the door to same trait in the accused. FRE 404(a)(2)(B)(ii)
Gov’t can offer victim’s character for peacefulness in homicide case to rebut claim that victim was first aggressor. FRE
404(a)(2)(C)
Prove character by reputation/opinion FRE
405.

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US v. Drapeau, 644 F.3d 646 (8 th Cir
2011)(404(a)(2)(B) permits accused to offer a pertinent trait of victim’s character, but specific acts are not admissible to establish the character trait.)

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FRE 404(a)(3) refers to FRE 607, 608, &
609 to regulate character of a witness
FRE 607: Any party can impeach any witness
FRE 608(a): limited to character for truthfulness or untruthfulness; character for truthfulness only permitted if evidence of untruthful character has been offered; proof limited to reputation and/or opinion

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FRE 608(b): Specific acts of truthfulness or untruthfulness not permitted. May, in discretion of the court, inquire into specific acts, other than convictions, probative of truthfulness or untruthfulness on cross of character witness.
FRE 609: Admits certain prior convictions to attack character for truthfulness of a witness.

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General Rule:
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Evidence of the defendant’s character is not admissible to prove he acted in conformity with that character trait on the day in questions unless:
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The defendant offers evidence of his own character (FRE
404(a)(2)(A))
The defendant offers evidence of the victim’s character (FRE
404(a)(2)(B))
The defendant is charged with sexual assault or child molestation (FRE 413-414)
“Once a defendant has provided any relevant
[character] testimony through any witness…he has
‘offered’ [character] testimony….” Fannon v.
Johnston , 88 F.Supp. 2d 753 (E.D. Mich. 2000)

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Opening Statement
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Opening statement is not evidence
Mentioning defendant’s good character in opening statement is not offering evidence
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Including claims of defendant’s good character in opening statement when you do not intend to offer such evidence is improper
But, it should not “open the door” to bad character evidence from the government
But see, US v Inserra, 34 F.3d 83 (2d Cir. 1994)

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Cross Examination
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Gov’t witness is actually favorable to defendant
One of two scenarios:
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“Blurts out” statements about defendant’s good character
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Object as non-responsive
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Move to strike
Defense elicits statements about defendant’s good character
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US v. Moore, 27 F.3d 969 (4 th Cir. 1994); US v. Grady,
665 F.2d 831 (8 th Cir. 1981)

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Defendant’s Direct
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Defendant can inject his character by:
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Bolstering his baby-sitting alibi by claiming he was “deeply devoted to his family and that he never left the child alone.”
US v. Dahlin , 734 F.2d 393 (8 th Cir. 1984)
Denying he was “into the cocaine thing.”
705 F.2d 210 (7 th Cir. 1983)
US v. Gaertner ,
Testifying to his career, personal history, family & business ties, medical problems, personal philosophy and civil contributions to negate criminal intent.
F.2d 649 (5 th Cir. 1982)
US v. Adamson , 665
Claiming he was “fanatic anti-drug individual.” US v.
Meachem, 799 F.2d 751 (Table), 1986 WL 17397 (4 th Cir.
1986)

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Other Defense Witnesses
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Intentionally elicit character trait on direct
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Opens door
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Gov’t can rebut
“Blurt out” good character testimony
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Object as non-responsive
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Move to strike