The character witness in court

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Credibility at trial is essential. The outcome of many cases often hinges on whom the judge or jury believes.

One way to demonstrate your client’s credibility is to call  a character witness. But appreciate under applicable state and federal rules, calling a character witness is very restricted.

Character questions arise in two different ways: Character may itself be an element of a charge, claim, or defense. This situation is commonly referred to as “character in issue.” Character evidence can also be action in conformity with character or a character trait on  a particular occasion to prove action in conformity with that action or trait on a particular occasion. This is known as “propensity evidence.”

To understand when a character witness may be called to testify, and the various ways to question them, familiarize yourself with the applicable Maryland and Federal Rules: MRE 5-404 (a)(2)and 5-405(a), and FRE 404(a)(2) and 405(a).

MRE 5-404 and 5-405, and FRE 404 and 405 state the propensity rule. They provide that a person’s character trait is not admissible to prove action in conformity with that character or trait on a particular occasion. This  prohibition is known as the propensity rule.

Significantly, exceptions exist specifically in criminal cases. In such cases, the accused can present evidence of good character that is pertinent to the nature of the charged offense. MRE 5-404. See Vigna v. State of Maryland, 241 Md. App 704 (2019). If the evidence is admitted, the prosecution may offer evidence to rebut it.

When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may be proved by specific instances of personal conduct.

Character evidence is generally not admissible to prove conduct in civil cases. But it might be admissible, if a trait of character has been placed in issue by the pleadings. Civil lawsuits in which character is a material issue are uncommon.

Consider also that rules or case law in various jurisdictions may offer guidelines regarding the methods of presenting testimony of character witnesses.

Here are some examples of questions related to character witnesses:

Take, for example, defendant John Jones, who is on trial for involuntary manslaughter resulting from alleged reckless driving. He strenuously denies the charges and is permitted to call a character witness:

Q. What is your occupation?
A. I am an Episcopal minister.
Q. How long have you been an Episcopal minister?
A. 17 years.
Q. How long have you known John Jones?
A. 10 years.
Q. How close to Mr. Jones do you live?
A. He lives next door to me.
Q. Do you know if he works?
A. He teaches history at Johns Fettering High School, a mile from where we live.

Reputation (Character in Issue)
Q. Do you know whether Mr. Jones has a reputation in the community where he lives for being a safe driver?
A. Yes.
Q. Does he have a reputation?
A. Yes.
Q. What is that reputation?
A. He has an excellent reputation for being a courteous and safe driver in the community where he lives.

Opinion (Character in Issue)
Q. Have you ever had the opportunity to drive with Mr. Jones?
A. Yes, on many occasions.
Q. Do you have an opinion whether or not he is a safe and courteous driver?
A. Yes.
Q. What is that opinion?
A. He is a very safe driver. He does not speed and is very careful.

Opinion with Specific Instances (Character in Issue)
Q. Do you have an opinion whether or not he is a safe and courteous driver?
A. Yes.
Q. What is that opinion?
A. He is a very safe driver. He does not speed and is very careful.
Q. Can you tell us about any specific occasions when you have driven with him?
A. Certainly. I remember last year he drove me to my office in Columbia, Maryland. I observed he never exceeded the speed limit, always stopped fully at stop signs, and was courteous to other drivers. For example, he would allow them to pull ahead without crowding them.

Bear in mind that testimony about specific instances is only permitted if the relevant charge or claim involves a character trait. Md Rule 5-505, FRE 505.

Before calling a character witness, as with any witness called at trial, be certain that the witness can withstand cross-examination, in particular without character flaws. (See, for example, MRE 608 and FRE 608, regarding cross-examination of character witnesses including for untruthfulness.)

Paul Mark Sandler, trial attorney and author, can be reached at [email protected].