Evidence Course Home Page
How
Rare Is “Character in Issue”?
(Why
does the answer matter?)
by Peter Tillers (c) 2010
The language in Rule 405(b) allowing the use of specific instances of conduct applies only when character is an element of a claim, charge, or defense.
To determine whether character is such an element you must examine the applicable substantive law and determine whether it makes liability depend on a character trait.
Examples of instances when character is an element of a charge, claim, or defense are:
(i) defamation cases in which a defendant makes a statement that imputes bad character to the plaintiff and the defendant uses truth as a defense, e.g., "I said Peter Plaintiff is a crook and he is indeed a crook and I will prove it by showing he did crooked acts."
(ii) negligent entrustment cases -- cases in which liability is premised on defendant's act of entrusting something to a person having an incompetent nature or character -- e.g., "I entrusted my jewels to the hotel and the hotel is liable for their theft because the hotel knowingly or negligently hired crooks and thieves as hotel employees and knowingly or negligently entrusted my jewels to such thieves for safekeeping, and I will prove that those employees had a thieving disposition by submitting evidence of their many acts of theft on other occasions."
Casebook editors, treatise writers, and judges often say that it is uncommon for the substantive law to make character or disposition an element of a claim, charge, or defense, and that it is therefore rare that specific instances of conduct are admissible to show character under Rule 405. However, those folks are woefully wrong; it is common and increasingly common for law to make liability and the degree of liability depend on character:
1. Wrongful employment termination cases in which the employer defends on the ground that the employee is incompetent or corrupt.
But note: employment contracts can be written so that such propensities or tendencies are not grounds for termination and so that only specific acts are grounds for termination.
2. Occupational licenses; licensing proceedings in which the right to acquire or hold a license depends in part on character -- e.g., lawyers, doctors, and many other professions; operators of gambling casinos; operators of nursing homes.
3. Government contracts of various kinds -- e.g., military procurement contracts, government construction contracts, and the like.
4. Teachers and professors, whose right to get or keep their jobs may depend, whether by law or contract, on the moral character or fitness of the teacher or professor.
5. Entertainment contracts with "good character" clauses -- the entertainer must be of good character (e.g., cannot be a pornographer or sexual predator or child molester). Cf. entertainment contracts with "good moral reputation" clauses.
6. Right to engage in government occupations; e.g., FBI agent, housing inspector, public prosecutor.
7. Recidivism statutes; felon-in-possession statutes (Old Chief): three-strikes or two-strikes statutes -- i.e., schemes in which the commission of an offense or the degree of punishment depends on whether a defendant has previously been convicted of a crime.
8. Sexual predator statutes -- involuntary civil commitment depends on whether the person has a dangerous tendency to "prey" sexually on children or other persons.
9. Garden variety sentencing schemes for garden variety crimes when the degree of the punishment can lawfully be affected by the dangerousness of the defendant or by the defendant's criminal propensities.
10. Parole revocation because of parolee's association with criminals, gangs, etc.
11. Child custody disputes in which the custody award may depend on the court's assessment of the fitness of a parent to act as a custodian of a child.
12. Applications for bail (release from pretrial confinement); court assesses the chances the defendant will flee, and perhaps also the defendant's dangerousness.
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These and other examples show that it is not at all uncommon for the legal rights and liabilities of persons and of business entities and other organizations to depend in part on various kinds of propensities, dispositions, and character traits of various kinds of persons. In those situations specific instances of conduct are admissible to show those propensities etc. Although the law of evidence purports to bar a party from showing what a person does by showing what the person is, the wider law within which the law of evidence resides often and increasingly does not hesitate to make legal rights and liabilities depend in part on what the person is -- to be precise, on the person's character or disposition -- and not just on what the person does.
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With rules such as Rule 404(a)(1), American society has driven a Subaru through the character evidence rule. With rules such as Rule 404(a)(2), American society has driven a Honda Accord through the character evidence rule. With rules such as Rule 405(b) accompanied by regulatory legislation, American society has driven a Mack Truck through the prohibition against "circumstantial" use of character evidence.