15 December 2009

MRE 404 and 405: Character Evidence

1. Counsel’s Objective: Appropriately limit when character evidence may and may not be used under Rule 404 and the manner in which it may be presented under Rule 405.

2. Key points.

a. Character evidence is inadmissible to prove that a person acted in conformity therewith on a specified occasion. “The State may not show the defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.” Michelson v. United States, 335 U.S. 469, 475 (1948).

b. Every Rule has its exceptions and Rule 404 is no different. Character evidence is admissible in three separate situations:

(i) Character of the Accused: The accused may offer, and the government may rebut character evidence concerning a pertinent character trait of the accused which makes it unlikely that the accused committed the charged offense. “Pertinent” in Rule 404(a) means the same thing as “relevant” as that term is defined in Rule 401.

(ii) Character of the Victim. The accused may offer and the government may rebut character evidence concerning a pertinent trait of the victim’s character that makes it likely that the victim acted in a certain way on a specified occasion. For example, the accused is permitted, when relevant, to show that the victim was the aggressor by introducing evidence of the victim’s character for violence. United States v. Rodriguez, 28 M.J. 1016 (A.F.C.M.R. 1989).

(iii) Character of a Witness: when a witness takes the stand, their character for truthfulness is at issue. Evidence about that witness’s character for truth-telling is permitted to support an inference that the witness has acted at trial in conformity with the witness’s usual respect for truth. Rule 404(a)(3) allows use of character evidence as provided in Rules 607, 608 and 609.

c. If the accused decides to offer character evidence, under Rule 405, the accused is limited to reputation or opinion testimony unless character is an essential element of an offense or defense (essentially entrapment).

d. Character is rarely an element of a crime, claim, or defense. An example is evidence of the accused’s predisposition to sell drugs in an entrapment defense, or the character of the victim in a criminal defamation action. Such evidence escapes the general proscription against character evidence because it is not offered to prove conformity, but because of the significance of the trait in relation to the crime. In such situations, proof may be made by means of opinion or reputation evidence or specific instances of a person’s conduct IAW MRE 405(a) and (b).

e. The foundation for reputation or opinion testimony is (i) the person has a particular character trait; (ii) the witness has an opinion about the trait, or is familiar with the person’s reputation concerning that particular trait, or can testify concerning specific acts relevant to the trait; (iii) the witness states an opinion, relates the reputation, or, under very limited circumstances, testifies about specific instances of conduct relevant to the trait in issue.

f. Examples of pertinent character trait: Larceny>trustworthiness; Drunkenness>sobriety.

g. An accused’s general good military character is a pertinent character trait if there is a nexus, however strained or slight, between the crime circumstances and the military. The defense, in virtually every case, and certainly in every “military” offense prosecution, may attempt a “good soldier defense” by presenting the accused’s good military character evidence. United States v. Wilson, 28 M.J. 48 (C.M.A. 1989). Consider the impact of United States v. Foster, 40 M.J. 140 (C.M.A. 1994) (service discrediting behavior or conduct prejudicial to good order inherent in all enumerated offenses).

h. In situations where the accused offers a pertinent character trait of the alleged victim, it is important to understand that this then opens the door for the government to offer evidence of the same character trait, if relevant, of the accused (even without the accused first bringing his or her character into evidence). Rule 404(a)(1). (June 2002 Amendment). Additionally, the rule also contains a limited exception permitting the government to introduce evidence of the victim’s character trait for peacefulness to rebut any evidence introduced by the defense to suggest that the victim was the aggressor in a homicide or assault case. The type of proof is generally limited to opinion and reputation.

i. Self-Defense - The most common use purpose for presenting character evidence of the victim is in self-defense cases. When the accused is charged with an assaultive offense, self defense may be presented under two separate theories. One allows specific incidents of conduct and the other does not. Thus, it is important for counsel to clearly indicate which theory they are relying upon.

(i) State of mind of the accused: under this theory, the accused presents evidence that he was aware of the victim’s past acts and reputation for being a violent person. Based upon this knowledge, the accused reasonably believed he was in danger and responded accordingly. Under this theory, state of mind of the accused is a non-character purpose of the evidence. As such, Rules 404 and 405 do not apply. The accused is free to present specific incidents of conduct. The purpose of this evidence is not to show the propensity of the victim on the date in question, but the basis for the accused’s reactions to the victim. See generally, United States v. Dobson, 63 M.J. 1 (2006) (military judge erred by not admitting specific acts evidence to show the appellant’s state of mind at the time of the victim’s death (a non-character purpose)).

(ii) Victim’s conduct at the time of the offense: the second theory implicates Rule 404(a)(2) and the restrictions of Rule 405. Under this defense theory, the defense is attempting to show the victim actually started the fight. While the defense could clearly discuss the specific acts of the victim at the time of the assault (disputed facts and not character evidence), the accused could not present past specific acts of the victim to prove the victim was violent person. The main difference between these two theories is focused primarily upon the accused’s knowledge prior to the assault. In the first, the accused is aware of the past acts, and it is these acts which were the driving force behind the accused actions, as opposed to the second theory, where the accused was not aware of the previous acts and is instead offering those acts for a propensity purpose (unless the acts are specifically offered as disputed facts). Confused? That is understandable. It is a minor difference, but important for you to understand if the judge tries to nail you down on your theory of admissibility to avoid an outcome similar to that in Dobson.

07 December 2009


This week I am a guest speaker at the Defense Institute of International Legal Studies (DIILS). The course that I have been asked to teach deals with outlining a systematic approach to prevention, detection, investigation and prosecution of corruption in public institutions. The two week course is called Legal Aspects of Combating Corruption. The course focuses on five critical themes: the International Legal Framework for Fighting Corruption, Standards of Conduct in Public Institutions, Transparent Public Sector Management, Investigation and Prosecution of Corruption Offenses, and International Cooperation.

DILLS is the lead agency for the Department of defense for legal programs for military and civilian government officials globally. In this role DIILS focuses on programs addressing the strategic, operation, and tactical decisions faces by military and civilian leaders as they work to accomplish their national interests under the Rule of Law. I am honored to have been asked to present during the first week of this course.