Character evidence is similar to hearsay in that there is a general rule of inadmissibility followed by so many exceptions that they often gobble up the general rule. But what can make character evidence trickier is that even when it is admissible, there are specific rules about the type of character evidence that is allowed. This article provides a road map so that trial lawyers can know the what, when, and how of character evidence.
What is Character Evidence?
"Although the term 'character' is not defined in the Evidence Code, it is generally described as 'the aggregate of a person's traits' and means 'disposition' (i.e., the tendency to act in a certain manner under given circumstances)." People v. Shoemaker, 135 Cal. App. 3d 442, 446-47 n.2 (1982), citing Model Code of Evidence, rule 304, com. (1942).
A person's character is conceivably relevant in every case. A person's propensity to be a careless driver, for example, has a tendency in reason to prove the driver was careless on the occasion in question. See Cal. Evid. Code § 210 ("'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.").
But while such evidence is logically relevant, boundless admissibility of character evidence can prolong and prejudice trials. See People v. Hovarter, 44 Cal. 4th 983, 1002 (2008). Accordingly, the general rule is that character evidence is "inadmissible when offered to prove his or her conduct on a specified occasion." Id. § 1101(a).
Before examining the occasions when character evidence is admissible, we must first distinguish character evidence from "habit or custom" evidence. While character evidence is evidence of a person's propensity or tendency to act in a certain way, "[c]ustom or habit involves a consistent, semi-automatic response to a repeated situation." Bowen v. Ryan, 163 Cal. App. 4th 916, 926 (2008). Unlike character evidence, "[a]ny otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom." Cal. Evid. Code § 1105.
Whether something is character evidence or habit evidence is a preliminary fact the trial judge decides. And the line between character and habit evidence can be difficult to discern.
For example, in Bowen, the plaintiff alleged that the defendant, a dentist, choked him and shoved him against a wall during an appointment. The plaintiff called thirteen witnesses who testified about other unrelated incidents in which the defendant allegedly hit, restrained, or otherwise mistreated child patients. Id. at 918. The Court of Appeal ruled that allowing evidence of these other incidents was wrong because a small handful of prior incidents, out of many thousands over many years of the defendant's practice, did not qualify as habit evidence. Id. at 926.
In Bender v. County of Los Angeles, 217 Cal. App. 4th 968 (2013), however, the plaintiff sued the county and a police deputy for allegedly assaulting him during his arrest. The plaintiff called two witnesses about unrelated incidents involving the same deputy allegedly using excessive force during their arrests. The defendant argued on appeal that admitting evidence of these other incidents violated Section 1101. Id. at 982. The Court of Appeal affirmed the trial court's decision on the ground that the other witness' testimony was probative of the deputy's practice and habit: "'Evidence [the officer] had a practice of bullying and assaulting other persons under his custody without provocation or apparent reason would tend to show that the injuries suffered by plaintiff were not the product of efforts to control him.... see also Evid. Code, § 1105....'" Id. at 983, citing Andrews v. City and County of San Francisco, 205 Cal. App. 3d 938, 944-46 (1988).
An appellate court reviews the admission of habit evidence versus the exclusion of character evidence—or vice versa—under the abuse of discretion standard. Put another way, advocacy and knowledge of these rules and principles is paramount. And even when the court decides that certain evidence is character evidence, there remain a number of occasions where it is properly admitted.
When A Particular Character Trait Of A Person Is Itself At Issue
One of the exceptions to the general rule of inadmissibility is when a person's character or a trait of his character is at issue. Cal. Evid. Code § 1100. Section 1100 states:
Except as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person's conduct) is admissible to prove a person's character or a trait of his character.
The language of Section 1100 can be confusing because it essentially provides that unless there is a statutory exclusion, any otherwise admissible evidence is admissible (to prove a person's character or a trait of his character). Put another way, "Section 1100 is technically unnecessary because Section 351 declares that all relevant evidence is admissible." Cal. Evid. Code § 1100, Comment. While there are restrictions when character evidence is admitted for other reasons (e.g., as discussed below, when offered to attack or to support the credibility of a witness), "Section 1100 applies without restriction only when character or a trait of character is an ultimate fact in dispute in the action." Id.
A person's character (or character trait) is typically an "ultimate fact in dispute" whenever that person's character is an issue under the substantive law or the pleadings in the case. See Pugh v. See's Candies, Inc., 203 Cal. App. 3d 743, 757 (1988). See's Candies involved an action for wrongful discharge brought by a managerial employee. Id. at 748. During trial, there was testimony from See's employees, former employees, and business associates that the plaintiff was disrespectful to his superiors and subordinates, disloyal to the company, and uncooperative with other administrative staff. Id. at 756.
The Court of Appeal affirmed the admission of such character evidence because the plaintiff's "character or personality in the workplace was in issue under the substantive law and in the pleadings of the case." Id. at 757. Because the plaintiff held a managerial position, his ability to work well with others was "crucial to [the company's] success." Id. The plaintiff had also placed his character in issue by asserting "that he was an excellent employee, never criticized, never argumentative, and always cooperative...." Id.
Character evidence is common in negligent entrustment or negligent hiring claims. For example, in a negligent entrustment of a motor vehicle claim, one of the elements is that the defendant "knew or should have known that the driver was incompetent or unfit to drive the vehicle." CACI No. 724. In Allen v. Toledo, 109 Cal. App. 3d 415 (1980), 19-year-old Stephen Toledo smashed his father's pick-up truck into Charlene Allen's car as she pulled out of a convenience store driveway, killing Charlene. Her four minor children sued Robert Toledo, Stephen's father, for negligently entrusting Stephen with his truck when he knew, or should have known, Stephen was a reckless driver. Id. at 418.
The trial court admitted evidence of other vehicle accidents involving Stephen (which Robert Toledo knew about). Id. at 419. The Court of Appeal affirmed the trial court's ruling because "Robert's knowledge of Stephen's unfitness or incompetence to drive is an essential element of liability for negligent entrustment." Id. Put another way, because Stephen's incompetence—i.e., his character trait of being unfit to drive—and his father's knowledge of it were ultimate facts in dispute of the case, such character evidence was admissible.
If, however, Robert had stipulated to being vicariously liable for Stephen's negligence, there would have likely been a different ruling with respect to Stephen's prior accidents. In Diaz v. Carcamo, 51 Cal. 4th 1148 (2011), an employer admitted that it was vicariously liable in the event its employee drove negligently. The California Supreme Court held in Diaz held that where the employer makes such an admission, prior accident evidence to show he was prone to drive negligently should be excluded. Id. at 1161.
A close cousin to character evidence is evidence about one's reputation. The distinction is important because it impacts the type of evidence—often related to the same circumstance—that is admissible. For example, Sanders v. Walsh, 219 Cal. App. 4th 855 (2013) was a defamation lawsuit where the plaintiff alleged that various internet postings were defamatory. The defendants sought to introduce a prior felony conviction of the plaintiff. Id. at 872-73. The defendants "offered the conviction 'for the purpose of establishing [plaintiff's] character and reputation....'" Id. at 872.
The Court in Sanders explained that character was not at issue in a defamation claim. Instead, "[d]efamation is an invasion of the interest in reputation." Id. at 873, citing Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999). Because character was not directly at issue in the case, evidence of the conviction itself was not relevant. However, because the plaintiff's reputation was relevant, the Court explained that "[c]ertainly defendants could have elicited testimony from individuals who knew about the conviction and thought less of [the] plaintiff as a result." Sanders, 219 Cal. App. 4th at 873.
Finally, once there is a determination that character or a character trait is relevant, the next question is what type of evidence may be admitted. Section 1100 provides that such character evidence can be in the "form of an opinion, evidence of reputation, and evidence of specific instances of such person's conduct."
Specific Instances Of Conduct To Prove Something Other Than A Person's Disposition Or Propensity To Act A Certain Way
As explained above, the general rule is that character evidence is "inadmissible when offered to prove his or her conduct on a specified occasion." Cal. Evid. Code § 1101(a). But what if the character evidence is offered to prove something other than a person's propensity to act in a certain way? Subdivision (b) of Section 1101 answers this question, and it provides a laundry list of instances in which character evidence can be admitted to prove something other than a person's conduct on a specified occasion. Subdivision (b) provides as follows:
Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
Cal. Evid. Code § 1101(b) (italics added).
Like character and habit evidence, the distinction between evidence that is relevant to show "intent" but inadmissible to show "propensity" is a thin one. For example, in Andrews v. City & County of San Francisco, 205 Cal. App. 3d 938, 945 (1988), evidence showing that a police officer bullied and assaulted other arrestees without provocation was admissible—not to prove the officer's propensity to violence—but to show intent and absence of mistake or accident.
Similarly, in People v. Steele, 27 Cal. 4th 1230, 1239 (2002), whether the defendant intended to kill a woman was disputed; the defendant alleged that he was under the influence of alcohol and lost control when he 'heard helicopters." California's Supreme Court affirmed the conviction along with the admission of evidence that the defendant had stabbed a women seventeen years earlier under similar circumstances: "[T]he doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous. Specifically, the more often one kills, especially under similar circumstances, the more reasonable the inference the killing was intended and premeditated." Id. at 1244, citing People v. Carpenter, 15 Cal. 4th 312, 379-80 (1997).
As detailed in a prior article, evidence of a defendant's intent can be admitted in harassment cases where the plaintiff seeks to call me-too witnesses. When admitted, such evidence is relevant to prove the defendant had a discriminatory motive to discharge the plaintiff. See Johnson v. United Cerebral Palsy/Spastic Children's Foundation, 173 Cal. App. 4th 740, 765-67 (2009), citing Heyne v. Caruso, 69 F. 3d 1475, 1480 (9th Cir. 1995) ("The sexual harassment of others, if shown to have occurred, is relevant and probative of [the defendant's] general attitude of disrespect toward his female employees, and his sexual objectification of them.").
Finally, when specific acts evidence is admitted under Section 1101(b), it most-often pertains to prior misconduct. Nevertheless, Section 1101(b) also applies to subsequent acts, which may be offered to a disputed issue. See People v. Trujillo Garcia, 89 Cal. App. 4th 1321, 1334-35 (2001) ("Nothing in Evidence Code section 210, defining 'relevant' evidence limits such evidence to a time frame before the crime at issue.").
Character Evidence Where Credibility Is At Issue
The final category in which character evidence can be admissible is when it goes to the witness' credibility. To understand when this type of evidence is admissible, it is important to understand that it implicates separate divisions of the Evidence Code. Division 9 (Cal. Evid. Code §§ 1100 - 1160) deals with evidence that is affected or excluded by extrinsic policies. Division 6 (Cal. Evid. Code §§ 700 - 795), meanwhile, deals with witnesses.
Evidence Code section 1101(c) provides that "[n]othing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." However, Evidence Code sections 780 and 786 limit the scope of character evidence that might be used to attack a witness' credibility. Section 780, subdivision (e), provides that, with respect to character evidence that can be used to attack or support a witness' credibility, it is limited to the witness' "character for honesty or veracity or their opposites." Section 786 clarifies this limitation even further, providing that, "[e]vidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness."
With respect to the type of evidence that may be introduced, it is limited to opinion or reputation evidence—i.e., evidence of specific acts are not permitted. In addition, evidence of good character evidence is only permitted after the witness' credibility has been attacked. See People v. Taylor, 180 Cal. App. 3d 622, 629-30 (1986). For example, impeaching a witness by the admission of contradictory testimony does not impeach their character.
In the event bad character is introduced, the witness who offered the opinion or reputation testimony may be cross-examined about specific acts that are inconsistent with the character trait testified to on direct. See People v. Hurd, 5 Cal. App. 3d 865, 877-81 (1970). The proper form of the question is "Have you heard that ...?" It is improper to ask questions that imply the matter is true (e.g., "Did you know that ...?"). People v. Marsh, 58 Cal. 2d 732, 745 (1962). With respect to whether further evidence on the specific incident is allowed will be within the discretion of the trial judge; however, courts are often reluctant to permit further evidence or impeachment on collateral matters. See e.g., Cal. Evid. Code § 780; see also Windred D. v. Michelin North America, Inc., 165 Cal. App. 4th 1011, 1029-30 (2008).
Character evidence can be among the most powerful types of evidence that a jury hears. Mastering the rules of its admissibility (and exclusion) is an essential component of the trial lawyer's toolkit.
David Sugden is a shareholder at Call & Jensen. He can be reached at [email protected].
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