Competing Standards for Character Evidence Testimony

By John Brophy, Features Editor

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The rules for character evidence both federally and in Pennsylvania are inadequate.  Currently, Pennsylvania restricts character evidence testimony to reputation only, while the federal standard permits character evidence in the form of opinion testimony. Character evidence is critically important in criminal cases, as character evidence in itself can create a reasonable doubt leading to acquittal.[1] Without the ability for character witnesses to testify in the form of opinion, criminal defendants in Pennsylvania risk losing invaluable testimony from a witness if they are not “within the community.”[2] To the contrary, the federal standard imposes no such spatial relationship to the admissibility of a character witness.[3] This article sets out the differing approaches to each standard, the critiques, and highlights potentials for reform in the field.

Pennsylvania sits among the minority of jurisdictions who have legislatively barred the use of opinion evidence to prove good character.[4] Criminal trial scholar Josephine Ross dubbed reputation evidence as “weak hearsay,” meaning that “the witness is only allowed to testify to what he heard others say about the accused.”[5] Reputation differs from opinion in that with reputation, “witnesses may only generalize from what other people told them about their opinion of the defendant’s character.”[6] Alternatively, opinion testimony allows a witness to abstract from their own observations, albeit still generalized, of the defendant’s character.[7] The danger in restricting character evidence to reputation only is the disparity in what evidence can be admitted between a criminal defendant and the prosecution.[8] While the criminally accused may only offer generalized reputation evidence of his good character, a prosecutor may, on rebuttal, offer specific instances of the defendant’s conduct in a more particularized way than how it was presented by the defendant on direct examination.[9]

Scholars have critiqued this uneven balance between the types of character evidence a defendant may offer versus what the prosecution may rebut with as a false promise to the accused, and a roadblock to obtaining a fair trial.[10] Some critics have gone as far as calling the criminally accuseds’ right to present character evidence as “practically meaningless.”[11] The current response to this dispute is the use of a limiting instruction given to jurors.[12] Jurors are instructed on the “proper use of character evidence,” at the time the judge charges them.[13] Critics express concern about how effective these instructions are – research has shown that “on average, jurors only understand about 50%-70% of their instructions.”[14] The concern is that jurors will be presented with disparately harmful character evidence against the accused, and the imbalance cannot be properly cured by a complex legalese instruction.[15]

To the contrary, the Federal Rules of Evidence permit a defendant to prove his good character through the use of opinion testimony, in addition to reputation.[16] Opinion testimony must qualify under an exception to the rule against hearsay to be admissible.[17] The proponent must not only demonstrate that they are a member of the same community as the accused, but also that “the basis of the reputation is one that is reliable.”[18] Structurally, the federal standard does offer defendants wider latitude in presenting good character witnesses. Practically, the danger remains that a judge could reject a character witness as either not being from the community, or deeming the witness unreliable.[19] Scholars critique this shortcoming by highlighting the value of character evidence in a criminal trial – such evidence has been deemed “critical to – if not altogether determinative of – a case’s outcome.”[20] Without a predictable system of who, when, and what can be presented by a criminal defendant, the result in resolving cases contains “substantial unpredictability,” that may lead to a defendant who “take[s] an unfair plea agreement to avoid risking the introduction of other-acts character evidence.”[21]

Advocates for reform have suggested that defendants be permitted to present specific-acts evidence in their defense.[22] Reformers seek to “equalize the balance between the defense and prosecution,” when it comes to presenting character evidence, whether it be good or bad.[23] The push for reform lies in the notion that “jury trials are all about character.”[24] Potential reform could come in limiting the ability of the prosecutor to sharply inquire into specific acts once the defendant ‘opens the door.’[25] The proposed resolution to this issue is to allow defendants to present “the strongest kind of evidence, namely testimony on direct examination as to particular acts.”[26] Additionally, reformers argue that jurors should be given “clear and effective instructions about the proper use of character evidence.”[27]

In sum, the promise that a defendant has the right to call character witnesses contains many hidden pitfalls, regardless of whether the jurisdiction is state or federal. Whether it be a seemingly uneven playing field between the accused and prosecutors, the inability to properly instruct jurors, or hearsay hurdles, it is clear that the area of character evidence in criminal trials needs to be reformed. While Pennsylvania should adopt the federal standard for character evidence to permit opinion testimony, both the state and federal rules of evidence need to be modernized to provide the accused with a fair trial.

[1] Josephine Ross, “He Looks Guilty”: Reforming Good Character Evidence to Undercut the Presumption of Guilt, 65 U. Pitt. L. Rev. 227, 229 (2004).

[2] Pa.R.E. 405.

[3] F.R.E. 405.

[4] Josephine Ross, “He Looks Guilty”: Reforming Good Character Evidence to Undercut the Presumption of Guilt, 65 U. Pitt. L. Rev. 227, 238 (2004).

[5] Id.

[6] Id. at 254.

[7] Id.

[8] Id. at 242.

[9] Id.

[10] Id.

[11] Id. at 254.

[12] Jennifer S. Hunt, The Cost of Character, 28 U. Fla. J.L. & Pub. Pol’y 241, 262 (2017).

[13] Id.

[14] Id. at 265.

[15] Id.

[16] F.R.E. 405.

[17] § 33:417. Reputation evidence concerning character, 12A Fed. Proc., L. Ed. § 33:417.

[18] Id. (See Pueblo of Jemez v. United States, 366 F. Supp. 3d 1234, 107 Fed. R. Evid. Serv. 1220 (D.N.M. 2018).

[19] Id.

[20] Hillel J. Bavli, Character Evidence As A Conduit for Implicit Bias, 56 U.C. Davis L. Rev. 1019, 1021–22 (2023).

[21] Id.

[22] Jennifer S. Hunt, The Cost of Character, 28 U. Fla. J.L. & Pub. Policy 241, 287 (2017).

[23] Id.

[24] Id. at 229.

[25] Id.

[26] Id. at 240.

[27] Id. (emphasis added).

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