Character Evidence in Civil and Criminal Cases
When Character Evidence is admissible in Civil and Criminal cases
Daniel M. Cavanaugh, 05/25/2011
This article will address the admissibility of character evidence for parties in civil and criminal cases. While rule 90.404 of the Florida Rules of Evidence restricts the admissibility of character evidence, there are limited instances where character evidence is allowed.
Can Character Evidence be admitted in a Civil Case? Generally No
Character evidence is only permitted in civil cases when “character” is an essential element of the case.1 Reputation evidence for this proof can be used but admitting specific instances of conduct is a far more logical way of presenting the evidence. That being said, it is the very rare cause where character is an essential element of the case. Defamation, Libel, Negligent Entrustment of a Motor Vehicle are all examples of causes of action that put character in issue.2 For example, Mr. Jones accuses Mr. Smith of being a thief. Mr. Smith sues Mr. Jones for defamation. If Mr. Jones claims truth as a defense to an action in defamation, then he is entitled to introduce evidence of Mr. Jones’ character as a thief. When defending against the elements of the instant case, specific instances are admissible to justify the defense (or the allegations of him being a thief).3
Is Character Evidence allowed in Criminal Cases? Sometimes
In criminal actions, the Defendant can introduce character evidence when it is directed at a trait relevant to the crime. On the other hand, the prosecution cannot introduce evidence meant to prove the bad character of Defendant (or anyone else). The prosecutor can, however, rebut the Defendant’s evidence. For example, if a Defendant has been charged with a theft, it would be relevant for him/her to show that s/he has a reputation for honesty because it is inconsistent with the Defendant’s character to commit a theft crime.4 The character trait has to be relevant to the charge. Mere introduction of good character in general is not allowed.5
A Defendant can also introduce evidence regarding a relevant trait of the victim (with some exceptions) and the prosecutor can rebut that evidence.6 Evidence of victim’s character can be proven by both reputation evidence and by specific instances of conduct.7
The prosecution is permitted to offer evidence of other crimes, wrongs or acts to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,8 because it is probative of a material issue and is not directed at bad character or propensity.9 While this evidence may prove bad character, it cannot be offered solely for this purpose.10 This evidence is subject to several conditions including a time sensitive notice to the defense, a requirement for the proof to be clear and convincing and is subject to a Fla. Stat. §90.403 analysis.
A Defendant can offer specific acts of conduct of the victim to show the reasonableness of Defendant’s actions in a self-defense case, but it cannot be offered to show bad character, as it is not really character evidence at all. These specific acts are offered to show reasonableness of Defendant’s apprehension.11
“Crossover” Civil cases can provide an exception to prohibition of Character Evidence in Civil Cases.
Some courts including the Second DCA have allowed reputation evidence reserved for criminal cases to be admitted in civil cases where the civil case is akin to a criminal case, such as assault, battery or sexual battery.12 “When evidence would be admissible under rule 404(a) in a criminal case, we think it should also be admissible in a civil case where the focus in on essentially criminal aspects, and the evidence is relevant, probative and not unduly prejudicial.”13
How do we prove Character? Specific Acts of Conduct or Reputation Evidence
It is well settled that in Florida, one cannot offer an opinion of another’s character in court. “Opinion testimony concerning a person’s character has traditionally been inadmissible on the basis that it is too unreliable.”14
Instead the Florida Evidence Code only allows specific instances of conduct and reputation evidence to prove character and the opportunities to use both are limited. As illustrated above, the limitations are greater in civil cases than in criminal cases.15
Can anyone testify to one’s Reputation in the Community? No
To offer reputation testimony, “[i]t must be established that the witness is familiar with the general reputation in the community of the individual at issue and the trait in question.”16
In order for a witness to testify regarding a party’s reputation in the community s/he must prove “that the community from which the reputation testimony is drawn is sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment.”17 “Reputation evidence ‘must be based on discussions among a broad group of people so that it accurately reflects the person’s character, rather than the biased opinions or comments of . . . a narrow segment of the community.’”18
“Testimony that a witness had lived in defendant’s neighborhood over twenty years and has seen him interact with neighbors was a sufficient foundation to establish the witness’ knowledge of Defendant’s reputation even though the witness had never spoken to anyone concerning the Defendant’s peacefulness.”19
Evidence of a party’s reputation must be confined to that party’s reputation at a time not too remote.20
The court determines outside the presence of the jury whether the witness has the requisite foundation to testify to one’s reputation. The trial court is afforded broad discretion in ruling on the admissibility of evidence and its ruling will not be disturbed absent a clear showing of an abuse of discretion.21
Social Networking – Another source for Character Evidence?
Social networking sites are increasingly becoming a place for people to communicate and keep in contact with each other. Additionally, Plaintiffs and Defendants are turning to these social networking sites to find evidence to use in their Civil and Criminal cases including photographs, biographical information and statements.
Can a witness testify about someone’s reputation based on what they have learned from a social networking site? There are currently no court decisions that have explored this issue. With all the people on social networking sites, it is a community unto itself. But can it serve as a community for purposes of introducing character evidence? Arguably the online community is broad enough to allow a person to learn sufficient information about another’s reputation. The Florida Supreme Court has allowed reputation testimony to be based on the discussions at the place of employment.22 It seems logical that just as information gained at a place of employment is admissible, a witness could testify about one’s reputation through their knowledge of the written conversations amongst the online community and their viewing of relevant online pictures and videos.
1 Fla Jur 2ndsection 236 (citing Law Revision Counsel Note to sec. 90.405, Fla. Stat.)
2 C. Ehrhardt, Florida Evidence section 404 (2009 Edition)
3 C. Ehrhardt, Florida Evidence section 404 (2009 Edition)
4 U.S. v.Hewitt, 634 F.2d 277 (5th Cir. 1981)
5 C. Ehrhardt, Florida Evidence Section 404 (2009 Edition)
6 Fla. Stat. §904.404(1)(b)
7 Smith v. State, 606 so.2d 641 (Fla. 1st DCA 1992)
8 Fla. Stat. §90.404(2)(a)
9 McLean v. State, 934 So.2d 1248 (Fla.2006)
10 Fl. Stat. §90.404(2)(a)
11 Grace v. State, 832 So. 2d 224 (Fla. 2nd DCA 2002)
12 C. Ehrhardt, Florida Evidence Section 404 (2009 Edition) citing Perrin v. Anderson, 784 F.2d 1040, 1044 (10th Circ. 1986); Crumpton v. Confederation Life Ins. Co., 672 F.2d 1248, 1254 n.7 (5th Cir. 1982) and Pino v. Koelber, 389 So.2d 1191, 1195 (Fla. 2nd DCA 1980)
14 McCormick, Evidence section 43 (4th Ed. 1992)
15 Fla. Stat. §90.404
16 Lewis v. State, 377 So. 2d 640 (Fla.1979)
17 Larzelere v. State, 676 So.2d 394, 399 (Fla.1996)
18 Williams v. State, 982 So. 2d 1190, 1193 (Fla. 4th DCA 2008) (quoting Hedges v. State, 667 So. 2d 420, 422 (Fla. 1st DCA 1996))
19 Hoffman v. State, 953 So.2d 643 (Fla. 3rd DCA 2007)
20 Alford v. State, 485 So.2d 1992 (Fla. 4th DCA 1987)
21 Muehleman v. State, 503 So.2d 310, 315 (Fla.1987)
22 Hamilton v. State, 176 So. 89 (Fla.1937)