In General
• Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
See Jacobs v. State, 22 N.E.3d 1286, 1288 (Ind. 2015)(“Indiana Evidence Rule 404(a) provides that character evidence generally is inadmissible to prove conduct in conformity with that character.”)
See also Brand v. State, 766 N.E.2d 772, 779 (Ind. Ct. App. 2002), reh’g denied, trans. denied(citing Brooks v. State, 683 N.E.2d 574, 576 (Ind. 1997))(“Generally, evidence of a person's character is inadmissible to prove action in conformity therewith on a particular occasion.”)
Rationale
• This rule of evidence prohibits the prosecution from initiating the presentation of evidence about a defendant’s bad character merely to give rise to an inference that he is therefore more likely to be guilty.
Byrd v. State, 593 N.E.2d 1183, 1185 (Ind. 1992)(citing Bond v. State, 403 N.E.2d 812, 818 (Ind. 1980), reh’g denied)
• The rule is designed to prevent the jury from assessing a defendant’s present guilt on the basis of past propensities.
Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012)(citing Hicks v. State, 690 N.E.2d 215, 218 (Ind. 1997))
Interpretations of “character” and “character evidence”
• “Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness.” United States v. Matias, 39 Fed. Appx. 550, 552 (9th Cir. 2002)(citing John W. Strong, McCormick on Evidence (5th ed. 1999)). “‘Character evidence’ is evidence regarding someone’s personality traits.” Black’s Law Dictionary 576 (7th ed. 1999).
Malinski v. State, 794 N.E.2d 1071, 1082 (Ind. 2003)
• [E]vidence of a person’s sexual preference or propensities is generally considered character evidence.
Utley v. State, 699 N.E.2d 723, 728 (Ind. Ct. App. 1998), trans. denied
Johnson v. State, 785 N.E.2d 1134, 1139 (Ind. Ct. App. 2003), trans. denied(citing Utley v. State, 699 N.E.2d 723, 728 (Ind. Ct. App. 1998), trans. denied)
Exceptions for a defendant or victim in a criminal case: Evidence of the defendant’s pertinent trait
• [A] defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.
E.g., Johnson v. State, 671 N.E.2d 1203, 1207 (Ind. Ct. App. 1996), trans. denied(“Had [the defendant] introduced evidence of his own character trait for peacefulness, then the State would have had the opportunity to offer rebuttal evidence as to [the defendant’s] peacefulness . . . .”)
See Schwestak v. State, 674 N.E.2d 962, 964 (Ind. 1996)(“Generally, evidence of a person’s character or trait of character is not admissible. . . . . [Evid.R. 404(a)(2)(A)] provides an exception to this general exclusion when character evidence is offered by the prosecution to rebut character evidence first offered by the accused.”)
• Rebuttal evidence “is limited to that which tends to explain, contradict, or disprove evidence offered by the adverse party.”
Schwestak v. State, 674 N.E.2d 962, 964 (Ind. 1996)(quoting Isaacs v. State, 659 N.E.2d 1036, 1041 (Ind. 1995), reh’g denied, cert. denied, 519 U.S. 879 (1996))
Wallace v. State, 836 N.E.2d 985, 998 (Ind. Ct. App. 2005), trans. denied(quoting Schwestak v. State, 674 N.E.2d 962, 964 (Ind. 1996)(quoting Isaacs v. State, 659 N.E.2d 1036, 1041 (Ind. 1995), reh’g denied, cert. denied, 519 U.S. 879 (1996)))
• [W]e find that a mere remark in [the defendant’s] opening statement that “this young lady [is] gullible, easily misled, [and] very trusting of all individuals,” without more, is insufficient for the State to introduce character evidence to the contrary as there is no evidence yet “to rebut.”
Payne v. State, 854 N.E.2d 7, 18 (Ind. Ct. App. 2006)
• In essence, the State argues that [the defendant’s] denial that he shot [the victim] contrasted with his respectful conduct during the trial permits the State to offer character evidence in rebuttal. We disagree. . . . [W]e decline to hold that by [the defendant] maintaining his innocence it was the equivalent of evidence of a pertinent trait of character offered by an accused that would invite rebuttal in the form of character evidence.
Wallace v. State, 836 N.E.2d 985, 997 (Ind. Ct. App. 2005), trans. denied)(quotation marks and citations omitted)
• Next, the State argues that [the defendant’s] appropriate dress for court and respectful courtroom conduct and demeanor was a character assertion made by [the defendant] that the State should be allowed to rebut. Again, we disagree. . . . We will not allow the State to attack [the defendant’s] choice of clothing and display of appropriate courtroom demeanor, without more, to be considered character “evidence” which the State may rebut.
Wallace v. State, 836 N.E.2d 985, 998 (Ind. Ct. App. 2005), trans. denied
• The State first claims that evidence of [the defendant’s] criminal recklessness conviction is relevant because [the defendant] opened the door by stating that he was not a killer. However, his statement is not evidence of a pertinent character trait that a prior conviction for criminal recklessness would rebut. One can be convicted of criminal recklessness and still not be a killer. This is not a case where the defendant says, “I would never beat my wife,” and has been convicted of several prior domestic batteries. Evidence of a prior criminal recklessness charge against someone other than the victim does not rebut a statement that the defendant is not a killer.
Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind. 2001)(emphasis added)
Exceptions for a defendant or victim in a criminal case: Evidence of an alleged victim’s pertinent trait
• [S]ubject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.
See Price v. State, 765 N.E.2d 1245, 1250 (Ind. 2002)(quotation marks and citation omitted)(“Indiana Evidence Rule 404 generally excludes character evidence, but provides an exception for evidence of a pertinent trait of character of the victim of the crime offered by an accused.”)
See also Brooks v. State, 683 N.E.2d 574, 576 (Ind. 1997)(quotation marks and citation omitted)(“The general rule is that evidence of a person’s character is not admissible to prove action in conformity therewith on a particular occasion. An exception to this rule is that a defendant is permitted to introduce evidence of a pertinent trait of character of the victim of the crime.”)
• For more information about Indiana Evidence Rule 412, please review Rape Shield.
• The victim’s reputation for violence is pertinent to a claim of self-defense. Thus, the victim’s reputed character, propensity for violence, prior threats and acts, if known by the defendant, may be relevant to the issue of whether a defendant had fear of the victim prior to utilizing deadly force against him.
Brand v. State, 766 N.E.2d 772, 780 (Ind. Ct. App. 2002), reh’g denied, trans. denied(citation omitted)
See Brooks v. State, 683 N.E.2d 574, 576 (Ind. 1997)(citing Johnson v. State, 671 N.E.2d 1203, 1208 (Ind. Ct. App. 1996), trans. denied)(“The victim’s reputation for violence is pertinent to a claim of self-defense.”)
• For more information about claims of self-defense, please review Self-Defense.
Exceptions for a defendant or victim in a criminal case: Evidence of an alleged victim’s trait of peacefulness
• [I]n a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
• [The defendant] attempts to distinguish the character trait of peacefulness from the trait of nonviolence. We refuse to make the fine distinction between nonviolence and peacefulness.
Forrest v. State, 655 N.E.2d 584, 587 n. 2 (Ind. Ct. App. 1995), trans. denied
• The State could not submit evidence regarding [the defendant’s] aggressive behavior to rebut evidence [the defendant] had submitted as to [the homicide victim’s] aggressive behavior. Had [the defendant] introduced evidence of his own character trait for peacefulness, then the State would have had the opportunity to offer rebuttal evidence as to [the defendant’s] peacefulness or to inquire as to relevant specific acts by [the defendant] on cross-examination. . . . Because [the defendant] did not introduce his character into the proceedings, the State, being limited to rebuttal evidence, was precluded from introducing such evidence.
Johnson v. State, 671 N.E.2d 1203, 1207 (Ind. Ct. App. 2006), trans. denied(emphasis added)
Exceptions for a witness
• Evidence of a witness’s character may be admitted under [Indiana Evidence Rules] 607, 608, and 609.
• For more information about Indiana Evidence Rules 607, 608, and 609, please review Character/Reputation.
Methods of proving character
• If character evidence falls under one of the exceptions in Evidence Rule 404(a), Evidence Rule 405 establishes the methods by which it may be proved.
Johnson v. State, 671 N.E.2d 1203, 1207 (Ind. Ct. App. 1996), trans. denied
Brand v. State, 766 N.E.2d 772, 779 n. 8 (Ind. Ct. App. 2002), reh’g denied, trans. denied
• When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
• When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
• Rule 405(a) permits proof of [character] evidence by testimony as to reputation, testimony in the form of an opinion, and, on cross-examination only, questions concerning relevant specific instances of conduct. Evid. R. 405(a). Evidence of specific instances of conduct also may be used when character is an essential element of a charge, claim, or defense. Evid. R. 405(b).
Johnson v. State, 671 N.E.2d 1203, 1207 (Ind. Ct. App. 1996), trans. denied
Brand v. State, 766 N.E.2d 772, 779 n. 8 (Ind. Ct. App. 2002), reh’g denied, trans. denied
See Brooks v. State, 683 N.E.2d 574, 576-77 (Ind. 1997)(footnote omitted)(“Evidence of specific incidents is permissible only on cross-examination of a character witness pursuant to Rule 405(a), or when character ‘is an essential element of a charge, claim, or defense’ pursuant to Rule 405(b).”)
• [T]he fact that a defendant asserts self-defense does not make the victim’s character an essential element of his defense.
Guillen v. State, 829 N.E.2d 142, 147 (Ind. Ct. App. 2005), trans. denied
See Brooks v. State, 683 N.E.2d 574, 576 (Ind. 1997)(“Nor was the victim’s character an essential element of [the defendant’s] claim of self-defense. Whether or not [the victim] had violent propensities, the jury could still determine that [the defendant] did not act in self-defense.”)
• For more information about character witnesses in general, please review Character & Reputation Witnesses.
• For more information about cross examination of character witnesses, please review Cross of Character Witnesses.
• If, in a criminal case, a defendant provides reasonable pretrial notice that the defendant intends to offer character evidence, the prosecution must provide the defendant with any relevant specific instances of conduct that the prosecution may use on cross-examination.