{"id":14523,"date":"2024-02-27T02:18:19","date_gmt":"2024-02-27T07:18:19","guid":{"rendered":"https:\/\/sites.law.duq.edu\/juris\/?p=14523"},"modified":"2024-02-27T02:18:20","modified_gmt":"2024-02-27T07:18:20","slug":"competing-standards-for-character-evidence-testimony","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2024\/02\/27\/competing-standards-for-character-evidence-testimony\/","title":{"rendered":"Competing Standards for Character Evidence Testimony"},"content":{"rendered":"\n

By John Brophy, Features Editor<\/p>\n\n\n\n

\"\"<\/a><\/figure>\n\n\n\n

Photo Courtesy of Unsplash.com<\/em><\/p>\n\n\n\n

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]<\/sup><\/a> 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]<\/sup><\/a> To the contrary, the federal standard imposes no such spatial relationship to the admissibility of a character witness.[3]<\/sup><\/a> This article sets out the differing approaches to each standard, the critiques, and highlights potentials for reform in the field.<\/p>\n\n\n\n

Pennsylvania sits among the minority of jurisdictions who have legislatively barred the use of opinion evidence to prove good character.[4]<\/sup><\/a> Criminal trial scholar Josephine Ross dubbed reputation evidence as \u201cweak hearsay,\u201d meaning that \u201cthe witness is only allowed to testify to what he heard others say about the accused.\u201d[5]<\/sup><\/a> Reputation differs from opinion in that with reputation, \u201cwitnesses may only generalize from what other people told them about their opinion of the defendant\u2019s character.\u201d[6]<\/sup><\/a> Alternatively, opinion testimony allows a witness to abstract from their own observations, albeit still generalized, of the defendant\u2019s character.[7]<\/sup><\/a> 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]<\/sup><\/a> 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\u2019s conduct in a more particularized way than how it was presented by the defendant on direct examination.[9]<\/sup><\/a><\/p>\n\n\n\n

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]<\/sup><\/a> Some critics have gone as far as calling the criminally accuseds\u2019 right to present character evidence as \u201cpractically meaningless.\u201d[11]<\/sup><\/a> The current response to this dispute is the use of a limiting instruction given to jurors.[12]<\/sup><\/a> Jurors are instructed on the \u201cproper use of character evidence,\u201d at the time the judge charges them.[13]<\/sup><\/a> Critics express concern about how effective these instructions are – research has shown that \u201con average, jurors only understand about 50%-70% of their instructions.\u201d[14]<\/sup><\/a> 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]<\/sup><\/a><\/p>\n\n\n\n

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]<\/sup><\/a> Opinion testimony must qualify under an exception to the rule against hearsay to be admissible.[17]<\/sup><\/a> The proponent must not only demonstrate that they are a member of the same community as the accused, but also that \u201cthe basis of the reputation is one that is reliable.\u201d[18]<\/sup><\/a> 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]<\/sup><\/a> Scholars critique this shortcoming by highlighting the value of character evidence in a criminal trial \u2013 such evidence has been deemed \u201ccritical to \u2013 if not altogether determinative of \u2013 a case\u2019s outcome.\u201d[20]<\/sup><\/a> Without a predictable system of who, when, and what can be presented by a criminal defendant, the result in resolving cases contains \u201csubstantial unpredictability,\u201d that may lead to a defendant who \u201ctake[s] an unfair plea agreement to avoid risking the introduction of other-acts character evidence.\u201d[21]<\/sup><\/a><\/p>\n\n\n\n

Advocates for reform have suggested that defendants be permitted to present specific-acts evidence in their defense.[22]<\/sup><\/a> Reformers seek to \u201cequalize the balance between the defense and prosecution,\u201d when it comes to presenting character evidence, whether it be good or bad.[23]<\/sup><\/a> The push for reform lies in the notion that \u201cjury trials are all about character.\u201d[24]<\/sup><\/a> Potential reform could come in limiting the ability of the prosecutor to sharply inquire into specific acts once the defendant \u2018opens the door.\u2019[25]<\/sup><\/a> The proposed resolution to this issue is to allow defendants to present \u201cthe strongest kind of evidence, namely testimony on direct examination as to particular acts.\u201d[26]<\/sup><\/a> Additionally, reformers argue that jurors should be given \u201cclear and effective instructions about the proper<\/em> use of character evidence.\u201d[27]<\/sup><\/a><\/p>\n\n\n\n

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.<\/p>\n\n\n\n

\n\n\n\n

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

[2]<\/sup><\/a> Pa.R.E. 405.<\/p>\n\n\n\n

[3]<\/sup><\/a> F.R.E. 405.<\/p>\n\n\n\n

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

[5]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[6]<\/sup><\/a> Id<\/em>. at 254.<\/p>\n\n\n\n

[7]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[8]<\/sup><\/a> Id<\/em>. at 242.<\/p>\n\n\n\n

[9]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[10]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[11]<\/sup><\/a> Id<\/em>. at 254.<\/p>\n\n\n\n

[12]<\/sup><\/a> Jennifer S. Hunt, The Cost of Character, 28 U. Fla. J.L. & Pub. Pol’y 241, 262 (2017).<\/p>\n\n\n\n

[13]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[14]<\/sup><\/a> Id<\/em>. at 265.<\/p>\n\n\n\n

[15]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[16]<\/sup><\/a> F.R.E. 405.<\/p>\n\n\n\n

[17]<\/sup><\/a> \u00a7 33:417. Reputation evidence concerning character, 12A Fed. Proc., L. Ed. \u00a7 33:417.<\/p>\n\n\n\n

[18]<\/sup><\/a> Id<\/em>. (See<\/em> Pueblo of Jemez v. United States<\/em>, 366 F. Supp. 3d 1234, 107 Fed. R. Evid. Serv. 1220 (D.N.M. 2018).<\/p>\n\n\n\n

[19]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[20]<\/sup><\/a> Hillel J. Bavli, Character Evidence As A Conduit for Implicit Bias, 56 U.C. Davis L. Rev. 1019, 1021\u201322 (2023).<\/p>\n\n\n\n

[21]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[22]<\/sup><\/a> Jennifer S. Hunt, The Cost of Character, 28 U. Fla. J.L. & Pub. Policy 241, 287 (2017).<\/p>\n\n\n\n

[23]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[24]<\/sup><\/a> Id<\/em>. at 229.<\/p>\n\n\n\n

[25]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[26]<\/sup><\/a> Id<\/em>. at 240.<\/p>\n\n\n\n

[27]<\/sup><\/a> Id<\/em>. (emphasis added).<\/p>\n","protected":false},"excerpt":{"rendered":"

By John Brophy, Features Editor Photo Courtesy of Unsplash.com 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 [\u2026] <\/p>\n

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Read More<\/a><\/p>\n","protected":false},"author":1,"featured_media":14524,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2092,7],"tags":[3873,353,2506,3727,3874,3875,3876],"class_list":["post-14523","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-features-articles","category-juris-features","tag-character-evidence","tag-criminal-law","tag-federal-rules-of-evidence","tag-john-brophy","tag-jurors","tag-opinion-testimony","tag-reputation-testimony"],"_links":{"self":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts\/14523","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/comments?post=14523"}],"version-history":[{"count":1,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts\/14523\/revisions"}],"predecessor-version":[{"id":14525,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts\/14523\/revisions\/14525"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/media\/14524"}],"wp:attachment":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/media?parent=14523"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/categories?post=14523"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/tags?post=14523"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}