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As a general rule, under Evidence Code 1101, character evidence is not admissible in a California jury trial to show that a person acted in accordance with his or her character on a particular occasion.¹

What this often means for a criminal defendant is that the prosecutor may not introduce evidence of bad acts you committed in the past—criminal or otherwise—in order to show that you committed the crime with which you are being charged.²

Example : Judy is on trial for Penal Code 211 PC – robbery and Penal Code 187 PC – murder. During her cross-examination, the prosecutor gets her to admit that she lost custody of her child in a divorce. He also gets her to admit that she has committed welfare fraud.

These issues are not relevant to Judy's guilt or innocence in the current case—except to the extent that they suggest to the jury that she is a bad person. Thus, they are character evidence and should not have been admitted in her trial.³

Exceptions to the character evidence rule

It is also important to understand what this California evidence rule does not exclude.

First of all, Evidence Code 1105 EC provides that so-called "habit evidence" is admissible to show that a defendant acted in accordance with his/her habits on a particular occasion.⁴ In contrast to character evidence—which is evidence about a person's personal traits—habit evidence is evidence about a person's regular behavior in a particular situation.⁵

Second, prosecutors may introduce evidence of your past bad acts in order to show something other than that you committed the crime with which you are being charged. For example, they may introduce character evidence in order to show that you

• Had a motive to commit the crime,
• Had the intent or a plan to commit the crime, or
• Had the opportunity to commit the crime.⁶

Finally, there are several exceptions to the rule against character evidence in a California criminal trial. These are:

1. The prosecutor may introduce evidence of the defendant's bad character – IF the defendant has first introduced evidence of his/her good character;⁷
2. The defendant may introduce evidence about the victim's character—and if s/he does so, then the prosecutor may do so as well;⁸
3. If the defendant introduces evidence that the victim has a violent character, then the prosecutor can introduce character evidence showing that the defendant also has violent tendencies;⁹
4. If the defendant is charged with a sex crime, then the prosecutor may introduce evidence that s/he has committed other sex crimes in the past;¹⁰
5. If the defendant is charged with violating California domestic violence laws, Penal Code 368 PC – elder abuse, or Penal Code 273d PC – child abuse, then the prosecutor may introduce evidence that s/he has committed similar crimes in the past;¹¹ AND
6. Certain kinds of character evidence that relate to a witness's honesty or dishonesty may be introduced to convince the jury that s/he is (or is not) trustworthy.¹²

In order to help you better understand character evidence in California criminal trials, our California criminal defense attorneys¹³ will address the following:

• 1. Is character evidence inadmissible in California criminal trials?
  • 1.1. Character evidence v. habit evidence
  • 1.2. Character evidence admissible to prove motive, opportunity, etc.
• 2. What are the exceptions where character evidence is admissible?
  • 2.1. When offered by defendant first
  • 2.2. Evidence of victim's character
    • 2.2.1. California's rape shield law
  • 2.3. Sex crimes cases
  • 2.4. Domestic violence, elder abuse, and child abuse cases
  • 2.5. Attacking the credibility of a witness
• 3. What are other evidentiary rules in California?

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

Character evidence is generally inadmissible in trials. But there are exceptions.

1. Is character evidence inadmissible in California criminal trials?

The general rule, set forth in Evidence Code 1101 EC, is that parties (the prosecution and the defense) in California criminal trials may not present

1. so-called "character evidence,"
2. in order to show that a person acted in accordance with his/her character on a particular occasion.¹⁴

"Character evidence" includes evidence about:

• A person's personality or propensities,
• The moral nature of a person's character (for example, are they a "good person" or a "bad person"), and
• A person's moral standing in their community.¹⁵

Example : Saul is a real estate developer on trial for Penal Code 165 – bribery of county supervisors in Los Angeles. While interviewing witnesses, the prosecutor finds out that Saul got in trouble for rigging an election for student body president when he was in college. It also emerges that Saul's employees all think he is "shady."

This evidence could obviously be very helpful in convincing the jury that Saul is the sort of person who would bribe a public official. But because of the rule against character evidence, the prosecutor may NOT introduce it for that purpose.

The major reason why the California rule against character evidence exists is that character evidence tends to confuse issues for (and often "inflames") the jury.

For instance, it distracts the jury from the main question of what happened on a particular occasion (for example, whether the defendant committed a crime then). And it may inspire them to use the criminal process to punish a bad person or reward a good person, regardless of the actual issue of guilt or innocence.¹⁶

1.1. Character evidence vs. habit evidence

But it is important to understand what counts as character evidence and what does not. Specifically, it is important to understand the difference between character evidence and "habit evidence"—because habit evidence is admissible under Evidence Code 1105 EC.¹⁷

Habit evidence is evidence about how a person usually behaves in a certain situation.¹⁸ Parties in a criminal case may present habit evidence to show that someone acted, or probably acted, in accordance with their habits on a specific occasion.¹⁹

According to Oakland criminal defense attorney Neil Shouse²⁰:

"One way of thinking about the distinction between character evidence and habit evidence is this: Character evidence is evidence about who someoneis, or what they are like. In contrast, habit evidence is evidence about what someone usually does. The line between the two can be hazy. Ultimately, the trial judge decides whether something is character evidence or habit evidence prior to trial."

Example : Kelly is arrested for Vehicle Code 23152 a VC – DUI on a Saturday night. She decides to fight the charges, arguing that the officer who arrested her got it wrong and she was not actually drunk that night.

The prosecutor may not introduce a witness who will testify that Kelly is a drunkard—that would be impermissible character evidence. But the prosecutor may be allowed to introduce witnesses who will testify that Kelly drinks large amounts at the same bar every Saturday night. That is habit evidence.

1.2. Character evidence admissible to prove motive, opportunity, etc.

As we discussed above, character evidence is only inadmissible for one purpose—proving that a person acted in accordance with their character on a particular occasion. But this type of evidence may be introduced for other purposes.²¹

Specifically, character evidence can be admitted at a California criminal trial to help show:

• Motive to commit a crime,
• Opportunity to commit a crime,
• Intent to commit a crime,
• Preparation or plan to commit a crime,
• A person's knowledge of a fact,
• Absence of mistake or accident, or
• Whether a defendant in a sex crimes case reasonably and in good faith believed that the alleged victim consented.²²

Example : Sally is charged with murdering her co-worker Pete. The prosecutor introduces evidence that Sally had been committing embezzlement at their place of employment and that Pete knew about it.

Under California laws regulating the admissibility of character evidence, evidence about Sally's embezzlement would not be admissible to show that she was a bad or dishonest person. But here the prosecutor is introducing that evidence to show that Sally had a motive to kill Pete (preventing him from turning her in). So the evidence is admissible at Sally's trial.

Criminal defendants may introduce relevant evidence of their character to show they behaved a certain way.

2. What are the exceptions where character evidence is admissible?

The California Evidence Code also sets out several exceptions to the rule against the admission of character evidence in California trials. These exceptions are:

2.1. When offered by defendant first

Under Evidence Code 1102 EC, criminal defendants are allowed to offer character evidence to prove that they behaved in a certain way. And if they do so, the prosecution is then permitted to offer character evidence to rebut the defendant's argument on this point.²³

The way this exception would typically work in practice is this: the defendant offers evidence of his/her good character in order to show that it is unlikely that s/he committed the crime. Then the prosecution may offer evidence to show that, in fact, the crime is in keeping with the defendant's (bad) character.

Example : Matthew is an investment manager on trial for securities fraud. The prosecutor has obtained evidence that, while he was in law school, Matthew created a fake transcript that he used to apply for jobs—and then created a fake paper trail to try to avoid discipline by the university for doing this.

Normally, this evidence about Matthew's dishonest behavior in the past would be inadmissible. But Matthew introduces a witness who testifies that Matthew has a reputation for honesty and was an exemplary student in law school.

Because Matthew has introduced evidence of his good character, the prosecutor can now introduce the evidence of his bad character to rebut it.²⁴

2.2. Evidence of victim's character

A criminal defendant is also permitted to offer evidence about the character of the crime victim. (This exception is set forth in Evidence Code 1103 EC.) And, if the defendant does so, then the prosecution can offer their own character evidence about the victim, in order to rebut the defendant's argument on this point.²⁵

Also, in

• cases involving violent crimes like Penal Code 242 PC –, and/or
• cases where the defendant is asserting a defense under California self-defense laws,

the defendant may want to introduce evidence that the victim has a propensity for violence. If the defendant does so, then the prosecutor is also allowed to introduce evidence about the defendant's violent character.²⁶

2.2.1. California's rape shield law

California's rape shield law is an important "exception to the exception."

The rape shield law says that, in criminal cases where the defendant is charged with certain sex crimes—including rape, marital rape, and forcible sexual penetration—the defendant may NOT introduce evidence about the victim's past sexual conduct or reputation in order to prove that s/he actually consented to the sexual act.²⁷

However, evidence about the victim's sexual conduct or reputation MAY be introduced to show that the defendant believed that s/he had consented.²⁸

Example : Margaret is accusing John of Penal Code 261 PC – rape. John knows that he can call witnesses to testify that Margaret has a reputation for being sexually promiscuous.

If John's legal defense is that in fact Margaret actually consented to have sex with him, then California's rape shield law means that he may not call these witnesses to testify about her reputation.

But if his defense is that he wrongly believed that she had consented, then he may call the witnesses for that purpose.

2.3. Sex crimes cases

Under Evidence Code 1108 EC, in a California sex crimes case, the prosecutor is permitted to introduce evidence that the defendant has committed other sex crimes in the past.²⁹

The defendant does not need to have actually been convicted of another sex crime in the past either. The prosecutor can introduce evidence that he was merely arrested in a case where charges were dropped, or that he committed a sex crime for which charges were never filed.³⁰

Also, as with all evidence introduced in California criminal trials, character evidence regarding past sex crimes may be excluded if its value is substantially outweighed by either:

1. the probability that it would take too much time to present, or
2. the risk that it would either cause undue prejudice against the defendant, confuse the issues, or mislead the jury.³¹

It is the judge who decides, in his/her discretion, whether or not to exclude sex crimes character evidence for one of these reasons—the most likely potential reason being that it would create undue prejudice against the defendant.³²

Prosecutors may introduce evidence of a defendant's past crimes in certain cases.

2.4. Domestic violence, elder abuse, and child abuse cases

As is the case with California sex crimes, if you are charged with any of

• California domestic violence crimes,
• California elder abuse crimes, or
• California child abuse crimes,

then the prosecutor may introduce evidence that you committed a similar crime in the past, even though such evidence would normally be inadmissible character evidence. (This exception is set forth in Evidence Code 1109 EC.)³³

However, in most cases, the prosecution is NOT allowed to introduce character evidence of past abuse crimes that occurred more than ten (10) years before the current offense is supposed to have happened.³⁴ Evidence of crimes that occurred more than 10 years ago can be admitted only if the judge makes a special determination that it would be "in the interest of justice."³⁵

Example : Todd is charged with the California domestic violence crime of Penal Code 243e1 PC – domestic battery, based on accusations by his current fiancée. Twelve years ago, he was convicted of Penal Code 273.5 PC corporal injury on a spouse, for an incident between him and his now ex-wife. He received probation for that conviction.

The prosecutor is not allowed to introduce character evidence regarding Todd's past conviction. That is because it occurred more than 10 years ago.

Also, even under this exception, character evidence of past child abuse crimes may only be introduced after a hearing is held to confirm that the value of that evidence is not outweighed by the likelihood of prejudice, confusion of the issues, or misleading of the jury.³⁶

2.5. Attacking the credibility of a witness

Finally, there is one very important situation where California character evidence is admissible in court. This is where such evidence is used to attack the credibility of a witness.³⁷

Under Rules of Evidence Code 780 EC, character evidence may be used to argue that, since the witness has lied before or has a dishonest character, s/he may be lying now.³⁸

Either side may impeach a witness's credibility by offering evidence about his/her past felony convictions, if these tend to show that s/he is not an honest person.³⁹ But these convictions may not be introduced if

• the witness has received a certificate of rehabilitation for his/her conviction(s), or
• the witness's conviction has been expunged under Penal Code 1203.4 PC—UNLESS the witness is also the defendant, and s/he is being charged now with a similar crime.⁴⁰

However, it is not okay to offer evidence about a witness's bad behavior that did not result in a criminal conviction.⁴¹ It is also not okay to offer

• evidence about any aspect of a witness's character other than his/her honesty or dishonesty,⁴²
• evidence about his/her religious faith or lack thereof,⁴³ or
• evidence about the witness's good character—UNLESS the other side has already introduced evidence about his/her bad character.⁴⁴

Example : Carl is the main defense witness in a criminal trial. The defendant has been accused of robbery, and Carl is going to support the defendant's alibi defense by testifying that the defendant was with him at the time the crime occurred.

But the prosecution has dug up some "dirt" on Carl. Specifically, the prosecutor knows that Carl was convicted of Penal Code 476 PC – check fraud a few years ago, that Carl has been arrested (but never charged) several times for getting into fights at bars, and that Carl is an atheist and has written an article stating that, since there is no God, people should be allowed to do whatever they want.

The prosecution is allowed to introduce evidence of Carl's check fraud conviction, in order to show that his testimony might not be true. But it cannot introduce evidence of his bar fights, because those don't say anything about whether he is an honest person. It also cannot introduce evidence about his atheism.

3. What are other evidentiary rules in California?

The rule against character evidence is just one of several important evidence rules that govern criminal trials in California.

For example, the California hearsay rule provides that—with many exceptions—so-called hearsay evidence is not admissible in California criminal trials.⁴⁵ Hearsay is defined as

• any statement that was not made by a witness testifying at the trial,
• that is offered for the truth of its content.⁴⁶

In addition, a number of evidentiary privileges protect certain individuals from having to testify against certain other individuals. For example, married people have the privilege not to testify against their spouse.⁴⁷

Whenever any California rule of evidence is violated in your criminal trial, it is your criminal defense lawyer's job to object to the violation. If s/he does so, and the judge overrules the objection—then you may be able to appeal your criminal conviction because of this. Appellate judges use the "abuse of discretion" standard to review character evidence issues.⁴⁸

Contact our law firm for a free consultation.

If you or a loved one is in need of help with character evidence and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. Our represent clients in both criminal and civil cases in state and federal courts.

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Legal References:

millerancions.blogspot.com

Source: https://www.shouselaw.com/ca/defense/evidence-code/character-evidence/

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