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Character Evidence in Trials

Character evidence is rarely admitted, and for good reason. Character evidence is essentially propensity evidence – that means that someone acted in conformity with their character. Character evidence is rarely admitted in civil trials, unless there is a relevant claim (e.g., slander). However it may come in criminal trials under certain situations. Character evidence revolves around the defendant, the victim, or a witness and is found under SCRE 404(a). If character evidence is allowed in, then the method for introducing it is found under SCRE 405 and 608(a) – depending who it is being used for or against.

First, the defendant might admit his good character in order to create reasonable doubt that he committed the crime – but this “good” character must be pertinent to the charged crime. If the defendant opens the door in this manner, then the State may rebut his good character. The issues that arise with this usually involve whether or not the defendant has actually opened the door. Second, the defendant might offer character evidence of the victim if it pertinent, and then the State can rebut that as well. This can arise in a self-defense claim if the defense wants to show that the victim was the first aggressor.

If character evidence is allowed in, then it must be in the form of opinion or reputation. Character evidence is based on a long period of time to either have an opinion of someone or to have heard a reputation about someone. If a witness testifies to an opinion or reputation about someone concerning their good character, then on cross-examination that witness may be asked about specific instances of conduct that run counter to this. The reason for these questions is two-fold. First, the practical effect is that the jury gets to hear challenges to the good character testimony (this is why a judge should limit any questions to be in good faith). Second, the witness is being challenged about their knowledge of the reputation of the person who they are vouching for – or perhaps maybe even changing their opinion about them.

If the character evidence is about a witness, then go to the chapter on Impeachment and also look to SCRE 608(a). In an article in the S.C. Lawyer[1], Judge Joseph Anderson has given a detailed and practical explanation of using SCRE 608(a):

Some trials present a prototypical swearing contest: In a slip and fall case, the plaintiff claims no warning signs were in place while the floor was being mopped; the store employee doing the mopping swears there were three. The entire case turns on whom the jury chooses to believe.

There is a readily available aid at your disposal, and I have never seen it used in 33 years on the bench. FRE Rule 608(a) allows you to call another witness, who knows your slip and fall plaintiff well and can offer the jury an opinion on whether your plaintiff is a truthful person.10 Or, your second witness can relate the plaintiff’s reputation in the community for truthfulness. There are two caveats: (1) you can only offer this evidence to “rehabilitate” a witness whose truthfulness is challenged. In most cases, sharp cross examination, or contradictory testimony by another witness is all you need to say your plaintiff’s credibility has been put in issue. (2) Be careful. If your plaintiff has any skeletons in the closet, your opponent can ask about them on cross, assuming the cross examination has a good faith belief that the skeletons exist.

In my view, such character witnesses could often be the “tie breaker” the jury needs to decide the swearing contest. And, generally speaking, an acquaintance who will give favorable character testimony about your critical witness should not be hard to find.

Rule 608 also allows the converse. You may call a witness to give opinion or witness testimony that a witness from the other side is not a believable witness.

I suspect that one reason Rule 608(a) is not used is that lawyers confuse it with the other rule on character evidence which goes the other way. Rule 404(a) strictly regulates the use of character evidence to show that, on a particular occasion, a person acted in accordance with that character.11 But Rule 404(a)(2) carves out an exception to the character of a witness as it relates to truthfulness and directs the reader to Rules 607–609.

So, if you need a simple mnemonic device to master the differences, just say, “The FRE do not permit you to say ‘once a bad driver, always a bad driver’ but they do permit you to say ‘once a liar, always a liar.’”

Also keep in mind that under SCRE 608(a), the rule allows for truthful character evidence to be admissible if the witness’s character for truthfulness has been attacked by opinion, reputation, or otherwise. In State v. Chisolm,[2]the defense called an attorney as a witness who gave an alibi for the defendant. On cross-examination, the State questioned the attorney about his public reprimand from the South Carolina Supreme Court. The State had the attorney read rule that he violated out loud to the jury. After this, the defense attempted to call a separate witness who would testify to the attorney’s reputation for honesty, but the trial court denied it. The Court of Appeals held that this was error because the attorney’s credibility for truthfulness had been attacked under SCRE 608(a)(2), and the defense should have been allowed to call a character witness to rehabilitate the attorney under SCRE 608(a)(1).

[1] Anderson, Jr., Joseph F., “Calling Albert Einstein to the Stand.” South Carolina Lawyer July 2020, pp. 48-53, [2] State v. Chisolm, No. 2004-UP-499, 2004 WL 6334913 (S.C. Ct. App. Oct. 5, 2004).


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