CONTINUING LEGAL EDUCATION
CHARACTER EVIDENCE
WAKE COUNTY ACADEMY OF CRIMINAL TRIAL LAWYERS
WEDNESDAY, APRIL 11, 2017
PRESENTED BY JOHN McWILLIAM
RULE 404: CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
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 particular occasion except:
(1) Character of Accused. Evidence of a pertinent trait of his character offered by:
an accused,
or by the prosecution to rebut the same;
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by:
an accused,
or by the prosecution to rebut the same,
or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
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. It may, however, be admissible for other purposes, such as:
proof of:
motive,
opportunity,
intent,
preparation,
plan,
knowledge,
identity,
or absence of:
mistake,
entrapment,
accident. ANALYSIS RULE 404(a)
Evidence of a person's character or character traits tends to distract the trier of fact from the primary issues of the case. Such evidence creates a substantial risk that a finding will be predicated on the trier's attitude towards a person's character, rather than on an objective determination of the facts. Consequently, specialized rules have been developed to limit the use of character evidence in order to protect the integrity of the fact-finding process. Rule 404(a) codifies the basic rule that evidence of a person's character or character traits is not admissible for the purpose of proving that such a person acted in conformity with his character on a particular occasion. The basic exclusionary rule applies in both civil and criminal cases, but it most frequently will be applied to exclude evidence in a criminal case. For example, a negative character trait of an accused may not be established by the prosecution as evidence of the propensity of the accused to commit the crime in question.
IllustrationIn a prosecution for murder, the State cannot seek to show the violent character or violent propensity of the accused in order to establish that the accused acted in conformity with his propensity and murdered the victim in question. Although the character evidence would be admissible under Rule 401 - it is relevant – it is rejected under Rule 404(a) because that evidence may excite the emotions and prejudices of the trier of fact; the trier might seek to punish the accused for his violent propensities rather than making a dispassionate and objective evaluation of the facts of the case. Rule 404(a) acts as a kind of Rule 403 specific to character evidence.
It should be noted that the basic exclusionary principle of Rule 404(a) prohibits the use of a specific type of inference. It does not forbid the use of character evidence generally. Consequently, when character evidence is used to establish something other than conforming conduct, such character evidence is not within the forbidden inferential pattern prohibited by Rule 404(a). Such situations where character evidence is used in a manner other than to prove conforming conduct will generally fall into the application of character evidence known as “character in issue.” Where character is “in issue,” character evidence itself forms an essential element of a charge, claim, or a defense. Character is “in issue” where it is not used as a basis for a further inference, but it is a terminal point of proof.
Illustration
The chastity of the victim under a statute specifying her chastity as an element of the crime of seduction,
or the competency of the driver in an action for negligently entrusting a vehicle to an incompetent driver.
[In these situations], no problem of the general relevancy of character is involved, and the present rule therefore has no provision on the subject. The only question relates to the allowable methods of proof [under] Rule 405.
Rule 404(a) sets forth three exceptions where the exclusionary rule will not apply to character used to prove conforming conduct:
The first exception allows the accused in a criminal case to seek to introduce pertinent evidence of his good character in order to raise the inference that on a particular occasion involving the crime for which he is charged, he acted in conformity with his good character and did not commit the operative facts of the crime.
Illustration
Where an accused is charged with murder, he may introduce evidence of his character trait for peacefulness in the hope that the jury will make the inference that he acted in conformity with his peaceful character on the particular occasion and did not commit the murder. Such application of character evidence is particularly useful where the prosecution’s case is based on circumstantial evidence. Character evidence is often used by the accused in this situation to create reasonable doubt as to whether he committed the crime.
The second exception to the exclusionary rule provides that an accused may introduce pertinent evidence of the character of the victim of the charged crime. Again, the term “accused’ indicated that, like in the first exception, Rule 404(a)(2) is applicable only in criminal cases. Rule 404(a)(2) is triggered by the accused offering a character witness in accordance with the procedures in Rule 405 who testifies to a “pertinent trait” of the victim of the charged crime. Additionally, a special application in homicide cases is provided in Rule 404(a)(2). In homicide cases, a plea of self-defense, coupled with evidence that the deceased was the first aggressor, is sufficient to trigger the prosecutor’s right to offer rebuttal evidence that the victim was a person of peaceful character. This provision is based on the peculiar need for this kind of evidence in situations where the victim, by the nature of the crime, is unavailable. Evidence that the victim was the first aggressor will permit the prosecution to offer evidence of the victim’s peaceful character, conforming to the method of proof under Rule 405.
Note bene
The accused’s injection of the victim’s character into the case does not open the door to the accused’s own character. Only the accused’s offering his own positive character evidence under 404(a)(1) opens the door to his own character.
The third exception to Rule 404(a) provides that the character of a witness may be explored with respect to the traits of veracity or truth-telling. This exception to the basic exclusionary rule is more fully set out in Rules 607, 608 and 609. It is important to note that the exception relating to the character of witnesses will apply to anyone - including the accused in a criminal case – who takes the stand. Consequently, if the accused elects to be a witness in his own case, certain aspects of his character may be explored by the prosecution pursuant to Rules 608 and 609.
ANALYSIS RULE 404(b)
The bete noir of the criminal defense lawyer, Rule 404(b) is one of the most important and oft-cited of the Rules of Evidence, but the actual language of the rule is simply a re-statement of part of Rule 404(a) with the emphasis shifted to the fact that evidence that is not offered for the purposes forbidden by Rule 404(a) is admissible if it is relevant for other purposes. This redundancy is necessary (one supposes) because of the nature of the evidence that is admissible for purposes other than proving character as circumstantial evidence of behavior. These purposes include evidence of individual bad acts if relevant for some other purpose, and, also, proof of patterns of behavior similar to but narrower than character.
These narrower patterns are usually offered as circumstantial evidence of “action in conformity therewith,” normally forbidden, but made admissible under the rules because they are not offered as general evidence of character or of a trait of character. The distinction is a difficult one to keep straight; and the cases are often a clearer guide than the language of the rule itself.
The list of bases for properly offering an extrinsic act set forth in the second sentence of Rule 404(b), is not exhaustive or to be construed as a list of exceptions to the rule, but rather as a suggestive, non-exhaustive catalogue of bases which do not violate the exclusionary principle of the first sentence of Rule 404(b). The fundamental issue for the Court to determine is whether the act is offered only to prove character and conforming conduct. If so, the evidence is inadmissible under the first sentence of Rule 404(b).
Illustration 1
A prior act may be used to show the motive of the accused rather than to show the accused’s propensity to commit anti-social acts. For example, if the defendant is charged with stealing an expensive diamond cutting device, the prosecution may seek to offer evidence that the month prior to the alleged theft of the cutting device, the defendant stole a bag of uncut diamonds. Proof of the prior act would give rise to the inference that the defendant had a motive for stealing the diamond cutting device.
Illustration 2
Often, prior acts of an accused are offered by the prosecution to establish identity of the perpetrator of the crime charged. For example, where the defendant is charged with armed robbery and he denies being the perpetrator of the crime, the prosecution may seek to establish his identity through the accused’s unique modus operandi of committing armed robberies. If the robbery in question was committed by a man wearing a Halloween mask who claimed to have dynamite wired to his body, and the accused has committed robberies on three prior occasions using the same method of operation, evidence of the accused’s prior acts would tend to identify him as the perpetrator of the crime he’s currently charge with. The prosecution would argue that the prior acts of the defendant are outside the exclusionary rule because they are not offered to establish character or criminal propensity.
And, of course, Rule 404(b) is subject to Rule 403’s analysis as to whether the probative value is substantially outweighed by the danger of unfair prejudice.
RECENT CASES RULE 404(a)(1) Character of Accused
State v. Jacobs, 195 N.C. App. 599 (2009). Evidence of deceased’s prior criminal convictions and other evidence of bad reputation as evidence that the defendant would have been afraid to attempt to rob the deceased.
State v. Buie, 194 N.C. App. 725 (2009). Defendant’s lawyer’s opening statement of evidence of the victim’s bad character.
State v. Banks, 191 N.C. App. 743 (2008). While evidence of a person’s character is not generally permissible to show that the person acted in conformity therewith on a certain occasion, may the accused present such evidence to show the victim’s and defendant’s actions before the alleged crime took place as being relevant to the issue of self-defense?
State v. Valladares, 165 N.C. App. 598 (2004). Evidence of the trait of being law-abiding in a criminal trial.
State v. Wagoner, 131 N.C. App. 285 (1998). Evidence of defendant’s psychological profile tending to show lack of sexual attraction to children.
State v. Barnes, 77 N.C. App. 212 (1985). Victim’s statement that she was afraid of her father.
RULE 404(a)(2) Character of Victim
State v. Thibodeaux, 352 N.C. 570 (2000). Statements of murder victim.
State v. Rich, 351 N.C. 386 (2000). Evidence of defendant’s prior convictions to show malice in a second degree murder trial.
State v. Mobley, 684 S.E.2d 508 (2009). Evidence of subsequent conduct to show identification, intent or modus operandi.
State v. Banks, 191 N.C. App. 743 (2008). Evidence of the victim’s character to show that he acted in conformity therewith on a specific occasion to show the victim’s and defendant’s actions before the alleged crime took place are relevant to the issue of self defense.
RULE 404(b) Other Crimes, Wrongs or Acts
Dowling v. United States, 493 U.S. 342 (1990). Evidence of the defendant’s prior acquittal of armed robbery in present trial for armed robbery. (See State v. Scott, 331 N.C. 39 (1992) and State v. Agee, 326 N.C. 542 (1990)).
State v. Walters, 357 N.C. 68 (2003). Disclosure before trial of the intent to use 404(b) evidence.
State v. Peterson, 361 N.C. 587 (2007). Circumstantial evidence that the defendant was the perpetrator of another crime for the purpose of showing intent, knowledge or lack of accident.
State v. Locklear, 363 N.C. 438 (2009). Deals with the issue of a defendant being charged with separate offenses occurring on separate occasions, the State’s election not to join them for trial, and the admissibility of acts of the set of charges in one event as 404(b) evidence in the other proceeding.
State v. Wilkerson, 356 N.C. 418 (2002). Bare evidence of the defendant’s prior cocaine convictions, standing alone, to prove the element of intent of possession with intent to sell or deliver cocaine.
State v. Al-Bayyinah, 356 N.C. 150 (2002). Evidence of two prior robberies in a robbery and murder trial where the prior robberies were factually dissimilar to the present case and the evidence that the defendant was the perpetrator of the prior robberies was questionable.
State v. Penland, 343 N.C. 634 (1996). Defendant challenges, on appeal, admissibility of prior bad acts on grounds of remoteness when, at trial, his objection was dissimilarity.
State v. Carter, 338 N.C. 569 (1994). When a remote prior bad act is used to show identity.
State v. Stager, 329 N.C. 278 (1991). Where accident is raised as a defense.
State v. Simpson, 327 N.C. 178 (1990). Failure to cite Rule 404(b) at the time of the objection and its effect on appeal.
State v. Agee, 326 N.C. 542 (1990). Prior acquittal.
State v. Artis, 325 N.C. 278 (1989). Similarity and temporal proximity.
State v. Rasor, 319 N.C. 577 (1987). Where defendant chooses to explain circumstances of other crimes, does he waive his right to object under 404(b)?
State v. Cotton, 318 N.C. 616 (1987). Defendant’s ability to introduce evidence of similar crimes by another person when they tend to show the other person committed the crime charged.
State v. Morgan, 315 N.C. 626 (1986). Can prior bad acts be proven by extrinsic evidence?
State v. Davis, 701 S.E.2d (2010). Remoteness in rape trials (28 years).
State v. Streater, 197 N.C. App. 632 (2009). Where evidence of prior bad acts should have been excluded under 404(b), defendant testifies, and the same evidence is properly admitted under Rule 609.
State v. Welch, 193 N.C. App. 186 (2008). Prior bad acts must be more than generic characteristics inherent to most crimes. Where the defendant is charged with PWISD Cocaine and his prior bad acts are mere possession of cocaine (what if the prior bad acts are convictions for possession of cocaine or PDP where the original charge was PWISD cocaine?)
State v. Little, 191 N.C. App. 655 (2008). Defendant’s offer of stipulation to prior felonies for the purpose of proving habitual felon status and the State’s ability to introduce evidence of prior convictions. See Old Chief v. United States, 519 U.S. 172 (1997).
State v. Bowman, 188 N.C. App. 635 (2008). Sex crime.
State v. Goodwin, 186 N.C. App. 638 (2007). Evidence that defendant had claimed self defense in two prior cases that the State voluntarily dismissed in current trial where defendant claims self-defense.
State v. Nguyen, 178 N.C. App. 447 (2006). State’s ability to elicit evidence form defendant’s psychologist concerning defendant’s statements about prior treatment of victim where defendant claimed lack of intent to kill victim.
State v. Murphy, 172 N.C. App. 734 (2005). Good analysis of the admissibility of specific instances of conduct versus opinion or reputation evidence.
State v. Delsanto, 172 N.C. App. 42 (2005). 27 year lapse in sex crime to establish the two incidents were part of a common scheme or plan.
State v. Hightower, 168 N.C. App. 661 (2005). Evidence that defendant was a gang member to prove motive where defendant told codefendant that he needed to do a “lick” and that in order to become a member you had to “rob someone.”
State v. Scott, 167 N.C. App. 783 (2005). DMV notice letters and redaction for the reason of the suspension.
State v. Cook, 165 N.C. App. 630 (2004). In trial for embezzlement, evidence during State’s casein chief of prior embezzlement for the sole purpose of attacking defendant’s credibility.
State v. Bell, 164 N.C. App. 630 (2004). Prior acquittals, collateral estoppel and double jeopardy.
State v. Dunston, 161 N.C. App. 468 (2003). Evidence in a sex offense case that defendant engaged in anal sex with others.
State v. Smith, 152 N.C. App. 202 (2003). Evidence in a sex offense case that defendant possessed pornographic material (what about the defendant wanting to introduce evidence of his possessing pornographic material that would tend to show that his sexual interests lie elsewhere from the kind of sex offense he’s accused of – charged with indecent liberties with a minor but all his pornography is of adults?)
State v. McCail, 150 N.C. App 643 (2002). Evidence of defendant twice robbing a grocery store in the month prior to the current robbery.
State v. Fluker, 139 N.C. App. 768 (2000). In prosecution for shoplifting where the defense is that the defendant returned the items for exchange, may the State cross-examine the defendant about being detained in another store earlier in the day?
State v. Willis, 136 N.C. App. 820 (2000). Good discussion on “commonality” or “similarity.”
State v. Cardwell, 133 N.C. App. 496 (1999). In DWI charge where defendant does not take the stand, may the state elicit evidence of the defendant’s giving contradictory statements about how much she had to drink?
State v. Broczkowski, 130 N.C. App. 702 (1998). Good discussion on absence of accident.
State v. Robinson, 115 N.C. App. 538 (1994). Prior acquittal so divests evidence of probative value that its tendency to show intent, common plan or absence of mistake is outweighed by the prejudicial impact of the evidence.
State v. White, 101 N.C. App. 593 (1991). If challenged, the party offering 404(b) evidence must specify the purpose for which it is being offered.
State v. Shultz, 88 N.C. App. 197 (1987). The remoteness analysis is most important when evidence is used to establish that both crimes arose out of a common plan or design; and less important when used to establish modus operandi.
State v. Bell, 87 N.C. App. 626 (1987). Testimony that victim is still afraid of defendant.
State v. Hamrick, 81 N.C. App. 508 (1986). Evidence showing similar crimes were committed in the recent past.
State v. Flannigan, 78 N.C. App. 629 (1985). Questions to defendant on cross-examination about other acts ending to show intent or motive in the current case must have a good faith basis; when the State has no competent witness to support the claim, it cannot be raised in a question to the defendant.
Finally, I recommend that everyone read People v. Molineux, 6 Bedell 264, 168 N.Y. 264, 61 N.E. 286 (1901).
CONTINUING LEGAL EDUCATION
CHARACTER EVIDENCE
WAKE COUNTY ACADEMY OF CRIMINAL TRIAL LAWYERS
WEDNESDAY, APRIL 11, 2017
PRESENTED BY JOHN McWILLIAM
RULE 404: CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
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 particular occasion except:
(1) Character of Accused. Evidence of a pertinent trait of his character offered by:
an accused,
or by the prosecution to rebut the same;
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by:
an accused,
or by the prosecution to rebut the same,
or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
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. It may, however, be admissible for other purposes, such as:
proof of:
motive,
opportunity,
intent,
preparation,
plan,
knowledge,
identity,
or absence of:
mistake,
entrapment,
accident. ANALYSIS RULE 404(a)
Evidence of a person's character or character traits tends to distract the trier of fact from the primary issues of the case. Such evidence creates a substantial risk that a finding will be predicated on the trier's attitude towards a person's character, rather than on an objective determination of the facts. Consequently, specialized rules have been developed to limit the use of character evidence in order to protect the integrity of the fact-finding process. Rule 404(a) codifies the basic rule that evidence of a person's character or character traits is not admissible for the purpose of proving that such a person acted in conformity with his character on a particular occasion. The basic exclusionary rule applies in both civil and criminal cases, but it most frequently will be applied to exclude evidence in a criminal case. For example, a negative character trait of an accused may not be established by the prosecution as evidence of the propensity of the accused to commit the crime in question.
IllustrationIn a prosecution for murder, the State cannot seek to show the violent character or violent propensity of the accused in order to establish that the accused acted in conformity with his propensity and murdered the victim in question. Although the character evidence would be admissible under Rule 401 - it is relevant – it is rejected under Rule 404(a) because that evidence may excite the emotions and prejudices of the trier of fact; the trier might seek to punish the accused for his violent propensities rather than making a dispassionate and objective evaluation of the facts of the case. Rule 404(a) acts as a kind of Rule 403 specific to character evidence.
It should be noted that the basic exclusionary principle of Rule 404(a) prohibits the use of a specific type of inference. It does not forbid the use of character evidence generally. Consequently, when character evidence is used to establish something other than conforming conduct, such character evidence is not within the forbidden inferential pattern prohibited by Rule 404(a). Such situations where character evidence is used in a manner other than to prove conforming conduct will generally fall into the application of character evidence known as “character in issue.” Where character is “in issue,” character evidence itself forms an essential element of a charge, claim, or a defense. Character is “in issue” where it is not used as a basis for a further inference, but it is a terminal point of proof.
Illustration
The chastity of the victim under a statute specifying her chastity as an element of the crime of seduction,
or the competency of the driver in an action for negligently entrusting a vehicle to an incompetent driver.
[In these situations], no problem of the general relevancy of character is involved, and the present rule therefore has no provision on the subject. The only question relates to the allowable methods of proof [under] Rule 405.
Rule 404(a) sets forth three exceptions where the exclusionary rule will not apply to character used to prove conforming conduct:
The first exception allows the accused in a criminal case to seek to introduce pertinent evidence of his good character in order to raise the inference that on a particular occasion involving the crime for which he is charged, he acted in conformity with his good character and did not commit the operative facts of the crime.
Illustration
Where an accused is charged with murder, he may introduce evidence of his character trait for peacefulness in the hope that the jury will make the inference that he acted in conformity with his peaceful character on the particular occasion and did not commit the murder. Such application of character evidence is particularly useful where the prosecution’s case is based on circumstantial evidence. Character evidence is often used by the accused in this situation to create reasonable doubt as to whether he committed the crime.
The second exception to the exclusionary rule provides that an accused may introduce pertinent evidence of the character of the victim of the charged crime. Again, the term “accused’ indicated that, like in the first exception, Rule 404(a)(2) is applicable only in criminal cases. Rule 404(a)(2) is triggered by the accused offering a character witness in accordance with the procedures in Rule 405 who testifies to a “pertinent trait” of the victim of the charged crime. Additionally, a special application in homicide cases is provided in Rule 404(a)(2). In homicide cases, a plea of self-defense, coupled with evidence that the deceased was the first aggressor, is sufficient to trigger the prosecutor’s right to offer rebuttal evidence that the victim was a person of peaceful character. This provision is based on the peculiar need for this kind of evidence in situations where the victim, by the nature of the crime, is unavailable. Evidence that the victim was the first aggressor will permit the prosecution to offer evidence of the victim’s peaceful character, conforming to the method of proof under Rule 405.
Note bene
The accused’s injection of the victim’s character into the case does not open the door to the accused’s own character. Only the accused’s offering his own positive character evidence under 404(a)(1) opens the door to his own character.
The third exception to Rule 404(a) provides that the character of a witness may be explored with respect to the traits of veracity or truth-telling. This exception to the basic exclusionary rule is more fully set out in Rules 607, 608 and 609. It is important to note that the exception relating to the character of witnesses will apply to anyone - including the accused in a criminal case – who takes the stand. Consequently, if the accused elects to be a witness in his own case, certain aspects of his character may be explored by the prosecution pursuant to Rules 608 and 609.
ANALYSIS RULE 404(b)
The bete noir of the criminal defense lawyer, Rule 404(b) is one of the most important and oft-cited of the Rules of Evidence, but the actual language of the rule is simply a re-statement of part of Rule 404(a) with the emphasis shifted to the fact that evidence that is not offered for the purposes forbidden by Rule 404(a) is admissible if it is relevant for other purposes. This redundancy is necessary (one supposes) because of the nature of the evidence that is admissible for purposes other than proving character as circumstantial evidence of behavior. These purposes include evidence of individual bad acts if relevant for some other purpose, and, also, proof of patterns of behavior similar to but narrower than character.
These narrower patterns are usually offered as circumstantial evidence of “action in conformity therewith,” normally forbidden, but made admissible under the rules because they are not offered as general evidence of character or of a trait of character. The distinction is a difficult one to keep straight; and the cases are often a clearer guide than the language of the rule itself.
The list of bases for properly offering an extrinsic act set forth in the second sentence of Rule 404(b), is not exhaustive or to be construed as a list of exceptions to the rule, but rather as a suggestive, non-exhaustive catalogue of bases which do not violate the exclusionary principle of the first sentence of Rule 404(b). The fundamental issue for the Court to determine is whether the act is offered only to prove character and conforming conduct. If so, the evidence is inadmissible under the first sentence of Rule 404(b).
Illustration 1
A prior act may be used to show the motive of the accused rather than to show the accused’s propensity to commit anti-social acts. For example, if the defendant is charged with stealing an expensive diamond cutting device, the prosecution may seek to offer evidence that the month prior to the alleged theft of the cutting device, the defendant stole a bag of uncut diamonds. Proof of the prior act would give rise to the inference that the defendant had a motive for stealing the diamond cutting device.
Illustration 2
Often, prior acts of an accused are offered by the prosecution to establish identity of the perpetrator of the crime charged. For example, where the defendant is charged with armed robbery and he denies being the perpetrator of the crime, the prosecution may seek to establish his identity through the accused’s unique modus operandi of committing armed robberies. If the robbery in question was committed by a man wearing a Halloween mask who claimed to have dynamite wired to his body, and the accused has committed robberies on three prior occasions using the same method of operation, evidence of the accused’s prior acts would tend to identify him as the perpetrator of the crime he’s currently charge with. The prosecution would argue that the prior acts of the defendant are outside the exclusionary rule because they are not offered to establish character or criminal propensity.
And, of course, Rule 404(b) is subject to Rule 403’s analysis as to whether the probative value is substantially outweighed by the danger of unfair prejudice.
RECENT CASES RULE 404(a)(1) Character of Accused
State v. Jacobs, 195 N.C. App. 599 (2009). Evidence of deceased’s prior criminal convictions and other evidence of bad reputation as evidence that the defendant would have been afraid to attempt to rob the deceased.
State v. Buie, 194 N.C. App. 725 (2009). Defendant’s lawyer’s opening statement of evidence of the victim’s bad character.
State v. Banks, 191 N.C. App. 743 (2008). While evidence of a person’s character is not generally permissible to show that the person acted in conformity therewith on a certain occasion, may the accused present such evidence to show the victim’s and defendant’s actions before the alleged crime took place as being relevant to the issue of self-defense?
State v. Valladares, 165 N.C. App. 598 (2004). Evidence of the trait of being law-abiding in a criminal trial.
State v. Wagoner, 131 N.C. App. 285 (1998). Evidence of defendant’s psychological profile tending to show lack of sexual attraction to children.
State v. Barnes, 77 N.C. App. 212 (1985). Victim’s statement that she was afraid of her father.
RULE 404(a)(2) Character of Victim
State v. Thibodeaux, 352 N.C. 570 (2000). Statements of murder victim.
State v. Rich, 351 N.C. 386 (2000). Evidence of defendant’s prior convictions to show malice in a second degree murder trial.
State v. Mobley, 684 S.E.2d 508 (2009). Evidence of subsequent conduct to show identification, intent or modus operandi.
State v. Banks, 191 N.C. App. 743 (2008). Evidence of the victim’s character to show that he acted in conformity therewith on a specific occasion to show the victim’s and defendant’s actions before the alleged crime took place are relevant to the issue of self defense.
RULE 404(b) Other Crimes, Wrongs or Acts
Dowling v. United States, 493 U.S. 342 (1990). Evidence of the defendant’s prior acquittal of armed robbery in present trial for armed robbery. (See State v. Scott, 331 N.C. 39 (1992) and State v. Agee, 326 N.C. 542 (1990)).
State v. Walters, 357 N.C. 68 (2003). Disclosure before trial of the intent to use 404(b) evidence.
State v. Peterson, 361 N.C. 587 (2007). Circumstantial evidence that the defendant was the perpetrator of another crime for the purpose of showing intent, knowledge or lack of accident.
State v. Locklear, 363 N.C. 438 (2009). Deals with the issue of a defendant being charged with separate offenses occurring on separate occasions, the State’s election not to join them for trial, and the admissibility of acts of the set of charges in one event as 404(b) evidence in the other proceeding.
State v. Wilkerson, 356 N.C. 418 (2002). Bare evidence of the defendant’s prior cocaine convictions, standing alone, to prove the element of intent of possession with intent to sell or deliver cocaine.
State v. Al-Bayyinah, 356 N.C. 150 (2002). Evidence of two prior robberies in a robbery and murder trial where the prior robberies were factually dissimilar to the present case and the evidence that the defendant was the perpetrator of the prior robberies was questionable.
State v. Penland, 343 N.C. 634 (1996). Defendant challenges, on appeal, admissibility of prior bad acts on grounds of remoteness when, at trial, his objection was dissimilarity.
State v. Carter, 338 N.C. 569 (1994). When a remote prior bad act is used to show identity.
State v. Stager, 329 N.C. 278 (1991). Where accident is raised as a defense.
State v. Simpson, 327 N.C. 178 (1990). Failure to cite Rule 404(b) at the time of the objection and its effect on appeal.
State v. Agee, 326 N.C. 542 (1990). Prior acquittal.
State v. Artis, 325 N.C. 278 (1989). Similarity and temporal proximity.
State v. Rasor, 319 N.C. 577 (1987). Where defendant chooses to explain circumstances of other crimes, does he waive his right to object under 404(b)?
State v. Cotton, 318 N.C. 616 (1987). Defendant’s ability to introduce evidence of similar crimes by another person when they tend to show the other person committed the crime charged.
State v. Morgan, 315 N.C. 626 (1986). Can prior bad acts be proven by extrinsic evidence?
State v. Davis, 701 S.E.2d (2010). Remoteness in rape trials (28 years).
State v. Streater, 197 N.C. App. 632 (2009). Where evidence of prior bad acts should have been excluded under 404(b), defendant testifies, and the same evidence is properly admitted under Rule 609.
State v. Welch, 193 N.C. App. 186 (2008). Prior bad acts must be more than generic characteristics inherent to most crimes. Where the defendant is charged with PWISD Cocaine and his prior bad acts are mere possession of cocaine (what if the prior bad acts are convictions for possession of cocaine or PDP where the original charge was PWISD cocaine?)
State v. Little, 191 N.C. App. 655 (2008). Defendant’s offer of stipulation to prior felonies for the purpose of proving habitual felon status and the State’s ability to introduce evidence of prior convictions. See Old Chief v. United States, 519 U.S. 172 (1997).
State v. Bowman, 188 N.C. App. 635 (2008). Sex crime.
State v. Goodwin, 186 N.C. App. 638 (2007). Evidence that defendant had claimed self defense in two prior cases that the State voluntarily dismissed in current trial where defendant claims self-defense.
State v. Nguyen, 178 N.C. App. 447 (2006). State’s ability to elicit evidence form defendant’s psychologist concerning defendant’s statements about prior treatment of victim where defendant claimed lack of intent to kill victim.
State v. Murphy, 172 N.C. App. 734 (2005). Good analysis of the admissibility of specific instances of conduct versus opinion or reputation evidence.
State v. Delsanto, 172 N.C. App. 42 (2005). 27 year lapse in sex crime to establish the two incidents were part of a common scheme or plan.
State v. Hightower, 168 N.C. App. 661 (2005). Evidence that defendant was a gang member to prove motive where defendant told codefendant that he needed to do a “lick” and that in order to become a member you had to “rob someone.”
State v. Scott, 167 N.C. App. 783 (2005). DMV notice letters and redaction for the reason of the suspension.
State v. Cook, 165 N.C. App. 630 (2004). In trial for embezzlement, evidence during State’s casein chief of prior embezzlement for the sole purpose of attacking defendant’s credibility.
State v. Bell, 164 N.C. App. 630 (2004). Prior acquittals, collateral estoppel and double jeopardy.
State v. Dunston, 161 N.C. App. 468 (2003). Evidence in a sex offense case that defendant engaged in anal sex with others.
State v. Smith, 152 N.C. App. 202 (2003). Evidence in a sex offense case that defendant possessed pornographic material (what about the defendant wanting to introduce evidence of his possessing pornographic material that would tend to show that his sexual interests lie elsewhere from the kind of sex offense he’s accused of – charged with indecent liberties with a minor but all his pornography is of adults?)
State v. McCail, 150 N.C. App 643 (2002). Evidence of defendant twice robbing a grocery store in the month prior to the current robbery.
State v. Fluker, 139 N.C. App. 768 (2000). In prosecution for shoplifting where the defense is that the defendant returned the items for exchange, may the State cross-examine the defendant about being detained in another store earlier in the day?
State v. Willis, 136 N.C. App. 820 (2000). Good discussion on “commonality” or “similarity.”
State v. Cardwell, 133 N.C. App. 496 (1999). In DWI charge where defendant does not take the stand, may the state elicit evidence of the defendant’s giving contradictory statements about how much she had to drink?
State v. Broczkowski, 130 N.C. App. 702 (1998). Good discussion on absence of accident.
State v. Robinson, 115 N.C. App. 538 (1994). Prior acquittal so divests evidence of probative value that its tendency to show intent, common plan or absence of mistake is outweighed by the prejudicial impact of the evidence.
State v. White, 101 N.C. App. 593 (1991). If challenged, the party offering 404(b) evidence must specify the purpose for which it is being offered.
State v. Shultz, 88 N.C. App. 197 (1987). The remoteness analysis is most important when evidence is used to establish that both crimes arose out of a common plan or design; and less important when used to establish modus operandi.
State v. Bell, 87 N.C. App. 626 (1987). Testimony that victim is still afraid of defendant.
State v. Hamrick, 81 N.C. App. 508 (1986). Evidence showing similar crimes were committed in the recent past.
State v. Flannigan, 78 N.C. App. 629 (1985). Questions to defendant on cross-examination about other acts ending to show intent or motive in the current case must have a good faith basis; when the State has no competent witness to support the claim, it cannot be raised in a question to the defendant.
Finally, I recommend that everyone read People v. Molineux, 6 Bedell 264, 168 N.Y. 264, 61 N.E. 286 (1901).
CONTINUING LEGAL EDUCATION
CHARACTER EVIDENCE
WAKE COUNTY ACADEMY OF CRIMINAL TRIAL LAWYERS
WEDNESDAY, APRIL 11, 2017
PRESENTED BY JOHN McWILLIAM
RULE 404: CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
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 particular occasion except:
(1) Character of Accused. Evidence of a pertinent trait of his character offered by:
an accused,
or by the prosecution to rebut the same;
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by:
an accused,
or by the prosecution to rebut the same,
or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
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. It may, however, be admissible for other purposes, such as:
proof of:
motive,
opportunity,
intent,
preparation,
plan,
knowledge,
identity,
or absence of:
mistake,
entrapment,
accident. ANALYSIS RULE 404(a)
Evidence of a person's character or character traits tends to distract the trier of fact from the primary issues of the case. Such evidence creates a substantial risk that a finding will be predicated on the trier's attitude towards a person's character, rather than on an objective determination of the facts. Consequently, specialized rules have been developed to limit the use of character evidence in order to protect the integrity of the fact-finding process. Rule 404(a) codifies the basic rule that evidence of a person's character or character traits is not admissible for the purpose of proving that such a person acted in conformity with his character on a particular occasion. The basic exclusionary rule applies in both civil and criminal cases, but it most frequently will be applied to exclude evidence in a criminal case. For example, a negative character trait of an accused may not be established by the prosecution as evidence of the propensity of the accused to commit the crime in question.
IllustrationIn a prosecution for murder, the State cannot seek to show the violent character or violent propensity of the accused in order to establish that the accused acted in conformity with his propensity and murdered the victim in question. Although the character evidence would be admissible under Rule 401 - it is relevant – it is rejected under Rule 404(a) because that evidence may excite the emotions and prejudices of the trier of fact; the trier might seek to punish the accused for his violent propensities rather than making a dispassionate and objective evaluation of the facts of the case. Rule 404(a) acts as a kind of Rule 403 specific to character evidence.
It should be noted that the basic exclusionary principle of Rule 404(a) prohibits the use of a specific type of inference. It does not forbid the use of character evidence generally. Consequently, when character evidence is used to establish something other than conforming conduct, such character evidence is not within the forbidden inferential pattern prohibited by Rule 404(a). Such situations where character evidence is used in a manner other than to prove conforming conduct will generally fall into the application of character evidence known as “character in issue.” Where character is “in issue,” character evidence itself forms an essential element of a charge, claim, or a defense. Character is “in issue” where it is not used as a basis for a further inference, but it is a terminal point of proof.
Illustration
The chastity of the victim under a statute specifying her chastity as an element of the crime of seduction,
or the competency of the driver in an action for negligently entrusting a vehicle to an incompetent driver.
[In these situations], no problem of the general relevancy of character is involved, and the present rule therefore has no provision on the subject. The only question relates to the allowable methods of proof [under] Rule 405.
Rule 404(a) sets forth three exceptions where the exclusionary rule will not apply to character used to prove conforming conduct:
The first exception allows the accused in a criminal case to seek to introduce pertinent evidence of his good character in order to raise the inference that on a particular occasion involving the crime for which he is charged, he acted in conformity with his good character and did not commit the operative facts of the crime.
Illustration
Where an accused is charged with murder, he may introduce evidence of his character trait for peacefulness in the hope that the jury will make the inference that he acted in conformity with his peaceful character on the particular occasion and did not commit the murder. Such application of character evidence is particularly useful where the prosecution’s case is based on circumstantial evidence. Character evidence is often used by the accused in this situation to create reasonable doubt as to whether he committed the crime.
The second exception to the exclusionary rule provides that an accused may introduce pertinent evidence of the character of the victim of the charged crime. Again, the term “accused’ indicated that, like in the first exception, Rule 404(a)(2) is applicable only in criminal cases. Rule 404(a)(2) is triggered by the accused offering a character witness in accordance with the procedures in Rule 405 who testifies to a “pertinent trait” of the victim of the charged crime. Additionally, a special application in homicide cases is provided in Rule 404(a)(2). In homicide cases, a plea of self-defense, coupled with evidence that the deceased was the first aggressor, is sufficient to trigger the prosecutor’s right to offer rebuttal evidence that the victim was a person of peaceful character. This provision is based on the peculiar need for this kind of evidence in situations where the victim, by the nature of the crime, is unavailable. Evidence that the victim was the first aggressor will permit the prosecution to offer evidence of the victim’s peaceful character, conforming to the method of proof under Rule 405.
Note bene
The accused’s injection of the victim’s character into the case does not open the door to the accused’s own character. Only the accused’s offering his own positive character evidence under 404(a)(1) opens the door to his own character.
The third exception to Rule 404(a) provides that the character of a witness may be explored with respect to the traits of veracity or truth-telling. This exception to the basic exclusionary rule is more fully set out in Rules 607, 608 and 609. It is important to note that the exception relating to the character of witnesses will apply to anyone - including the accused in a criminal case – who takes the stand. Consequently, if the accused elects to be a witness in his own case, certain aspects of his character may be explored by the prosecution pursuant to Rules 608 and 609.
ANALYSIS RULE 404(b)
The bete noir of the criminal defense lawyer, Rule 404(b) is one of the most important and oft-cited of the Rules of Evidence, but the actual language of the rule is simply a re-statement of part of Rule 404(a) with the emphasis shifted to the fact that evidence that is not offered for the purposes forbidden by Rule 404(a) is admissible if it is relevant for other purposes. This redundancy is necessary (one supposes) because of the nature of the evidence that is admissible for purposes other than proving character as circumstantial evidence of behavior. These purposes include evidence of individual bad acts if relevant for some other purpose, and, also, proof of patterns of behavior similar to but narrower than character.
These narrower patterns are usually offered as circumstantial evidence of “action in conformity therewith,” normally forbidden, but made admissible under the rules because they are not offered as general evidence of character or of a trait of character. The distinction is a difficult one to keep straight; and the cases are often a clearer guide than the language of the rule itself.
The list of bases for properly offering an extrinsic act set forth in the second sentence of Rule 404(b), is not exhaustive or to be construed as a list of exceptions to the rule, but rather as a suggestive, non-exhaustive catalogue of bases which do not violate the exclusionary principle of the first sentence of Rule 404(b). The fundamental issue for the Court to determine is whether the act is offered only to prove character and conforming conduct. If so, the evidence is inadmissible under the first sentence of Rule 404(b).
Illustration 1
A prior act may be used to show the motive of the accused rather than to show the accused’s propensity to commit anti-social acts. For example, if the defendant is charged with stealing an expensive diamond cutting device, the prosecution may seek to offer evidence that the month prior to the alleged theft of the cutting device, the defendant stole a bag of uncut diamonds. Proof of the prior act would give rise to the inference that the defendant had a motive for stealing the diamond cutting device.
Illustration 2
Often, prior acts of an accused are offered by the prosecution to establish identity of the perpetrator of the crime charged. For example, where the defendant is charged with armed robbery and he denies being the perpetrator of the crime, the prosecution may seek to establish his identity through the accused’s unique modus operandi of committing armed robberies. If the robbery in question was committed by a man wearing a Halloween mask who claimed to have dynamite wired to his body, and the accused has committed robberies on three prior occasions using the same method of operation, evidence of the accused’s prior acts would tend to identify him as the perpetrator of the crime he’s currently charge with. The prosecution would argue that the prior acts of the defendant are outside the exclusionary rule because they are not offered to establish character or criminal propensity.
And, of course, Rule 404(b) is subject to Rule 403’s analysis as to whether the probative value is substantially outweighed by the danger of unfair prejudice.
RECENT CASES RULE 404(a)(1) Character of Accused
State v. Jacobs, 195 N.C. App. 599 (2009). Evidence of deceased’s prior criminal convictions and other evidence of bad reputation as evidence that the defendant would have been afraid to attempt to rob the deceased.
State v. Buie, 194 N.C. App. 725 (2009). Defendant’s lawyer’s opening statement of evidence of the victim’s bad character.
State v. Banks, 191 N.C. App. 743 (2008). While evidence of a person’s character is not generally permissible to show that the person acted in conformity therewith on a certain occasion, may the accused present such evidence to show the victim’s and defendant’s actions before the alleged crime took place as being relevant to the issue of self-defense?
State v. Valladares, 165 N.C. App. 598 (2004). Evidence of the trait of being law-abiding in a criminal trial.
State v. Wagoner, 131 N.C. App. 285 (1998). Evidence of defendant’s psychological profile tending to show lack of sexual attraction to children.
State v. Barnes, 77 N.C. App. 212 (1985). Victim’s statement that she was afraid of her father.
RULE 404(a)(2) Character of Victim
State v. Thibodeaux, 352 N.C. 570 (2000). Statements of murder victim.
State v. Rich, 351 N.C. 386 (2000). Evidence of defendant’s prior convictions to show malice in a second degree murder trial.
State v. Mobley, 684 S.E.2d 508 (2009). Evidence of subsequent conduct to show identification, intent or modus operandi.
State v. Banks, 191 N.C. App. 743 (2008). Evidence of the victim’s character to show that he acted in conformity therewith on a specific occasion to show the victim’s and defendant’s actions before the alleged crime took place are relevant to the issue of self defense.
RULE 404(b) Other Crimes, Wrongs or Acts
Dowling v. United States, 493 U.S. 342 (1990). Evidence of the defendant’s prior acquittal of armed robbery in present trial for armed robbery. (See State v. Scott, 331 N.C. 39 (1992) and State v. Agee, 326 N.C. 542 (1990)).
State v. Walters, 357 N.C. 68 (2003). Disclosure before trial of the intent to use 404(b) evidence.
State v. Peterson, 361 N.C. 587 (2007). Circumstantial evidence that the defendant was the perpetrator of another crime for the purpose of showing intent, knowledge or lack of accident.
State v. Locklear, 363 N.C. 438 (2009). Deals with the issue of a defendant being charged with separate offenses occurring on separate occasions, the State’s election not to join them for trial, and the admissibility of acts of the set of charges in one event as 404(b) evidence in the other proceeding.
State v. Wilkerson, 356 N.C. 418 (2002). Bare evidence of the defendant’s prior cocaine convictions, standing alone, to prove the element of intent of possession with intent to sell or deliver cocaine.
State v. Al-Bayyinah, 356 N.C. 150 (2002). Evidence of two prior robberies in a robbery and murder trial where the prior robberies were factually dissimilar to the present case and the evidence that the defendant was the perpetrator of the prior robberies was questionable.
State v. Penland, 343 N.C. 634 (1996). Defendant challenges, on appeal, admissibility of prior bad acts on grounds of remoteness when, at trial, his objection was dissimilarity.
State v. Carter, 338 N.C. 569 (1994). When a remote prior bad act is used to show identity.
State v. Stager, 329 N.C. 278 (1991). Where accident is raised as a defense.
State v. Simpson, 327 N.C. 178 (1990). Failure to cite Rule 404(b) at the time of the objection and its effect on appeal.
State v. Agee, 326 N.C. 542 (1990). Prior acquittal.
State v. Artis, 325 N.C. 278 (1989). Similarity and temporal proximity.
State v. Rasor, 319 N.C. 577 (1987). Where defendant chooses to explain circumstances of other crimes, does he waive his right to object under 404(b)?
State v. Cotton, 318 N.C. 616 (1987). Defendant’s ability to introduce evidence of similar crimes by another person when they tend to show the other person committed the crime charged.
State v. Morgan, 315 N.C. 626 (1986). Can prior bad acts be proven by extrinsic evidence?
State v. Davis, 701 S.E.2d (2010). Remoteness in rape trials (28 years).
State v. Streater, 197 N.C. App. 632 (2009). Where evidence of prior bad acts should have been excluded under 404(b), defendant testifies, and the same evidence is properly admitted under Rule 609.
State v. Welch, 193 N.C. App. 186 (2008). Prior bad acts must be more than generic characteristics inherent to most crimes. Where the defendant is charged with PWISD Cocaine and his prior bad acts are mere possession of cocaine (what if the prior bad acts are convictions for possession of cocaine or PDP where the original charge was PWISD cocaine?)
State v. Little, 191 N.C. App. 655 (2008). Defendant’s offer of stipulation to prior felonies for the purpose of proving habitual felon status and the State’s ability to introduce evidence of prior convictions. See Old Chief v. United States, 519 U.S. 172 (1997).
State v. Bowman, 188 N.C. App. 635 (2008). Sex crime.
State v. Goodwin, 186 N.C. App. 638 (2007). Evidence that defendant had claimed self defense in two prior cases that the State voluntarily dismissed in current trial where defendant claims self-defense.
State v. Nguyen, 178 N.C. App. 447 (2006). State’s ability to elicit evidence form defendant’s psychologist concerning defendant’s statements about prior treatment of victim where defendant claimed lack of intent to kill victim.
State v. Murphy, 172 N.C. App. 734 (2005). Good analysis of the admissibility of specific instances of conduct versus opinion or reputation evidence.
State v. Delsanto, 172 N.C. App. 42 (2005). 27 year lapse in sex crime to establish the two incidents were part of a common scheme or plan.
State v. Hightower, 168 N.C. App. 661 (2005). Evidence that defendant was a gang member to prove motive where defendant told codefendant that he needed to do a “lick” and that in order to become a member you had to “rob someone.”
State v. Scott, 167 N.C. App. 783 (2005). DMV notice letters and redaction for the reason of the suspension.
State v. Cook, 165 N.C. App. 630 (2004). In trial for embezzlement, evidence during State’s casein chief of prior embezzlement for the sole purpose of attacking defendant’s credibility.
State v. Bell, 164 N.C. App. 630 (2004). Prior acquittals, collateral estoppel and double jeopardy.
State v. Dunston, 161 N.C. App. 468 (2003). Evidence in a sex offense case that defendant engaged in anal sex with others.
State v. Smith, 152 N.C. App. 202 (2003). Evidence in a sex offense case that defendant possessed pornographic material (what about the defendant wanting to introduce evidence of his possessing pornographic material that would tend to show that his sexual interests lie elsewhere from the kind of sex offense he’s accused of – charged with indecent liberties with a minor but all his pornography is of adults?)
State v. McCail, 150 N.C. App 643 (2002). Evidence of defendant twice robbing a grocery store in the month prior to the current robbery.
State v. Fluker, 139 N.C. App. 768 (2000). In prosecution for shoplifting where the defense is that the defendant returned the items for exchange, may the State cross-examine the defendant about being detained in another store earlier in the day?
State v. Willis, 136 N.C. App. 820 (2000). Good discussion on “commonality” or “similarity.”
State v. Cardwell, 133 N.C. App. 496 (1999). In DWI charge where defendant does not take the stand, may the state elicit evidence of the defendant’s giving contradictory statements about how much she had to drink?
State v. Broczkowski, 130 N.C. App. 702 (1998). Good discussion on absence of accident.
State v. Robinson, 115 N.C. App. 538 (1994). Prior acquittal so divests evidence of probative value that its tendency to show intent, common plan or absence of mistake is outweighed by the prejudicial impact of the evidence.
State v. White, 101 N.C. App. 593 (1991). If challenged, the party offering 404(b) evidence must specify the purpose for which it is being offered.
State v. Shultz, 88 N.C. App. 197 (1987). The remoteness analysis is most important when evidence is used to establish that both crimes arose out of a common plan or design; and less important when used to establish modus operandi.
State v. Bell, 87 N.C. App. 626 (1987). Testimony that victim is still afraid of defendant.
State v. Hamrick, 81 N.C. App. 508 (1986). Evidence showing similar crimes were committed in the recent past.
State v. Flannigan, 78 N.C. App. 629 (1985). Questions to defendant on cross-examination about other acts ending to show intent or motive in the current case must have a good faith basis; when the State has no competent witness to support the claim, it cannot be raised in a question to the defendant.
Finally, I recommend that everyone read People v. Molineux, 6 Bedell 264, 168 N.Y. 264, 61 N.E. 286 (1901).
