Character Evidence in Civil Litigation
Character evidence is evidence that relates to a person’s propensity to engage in a certain type of conduct. Examples of character traits that frequently come up in legal actions include:
–a person’s propensity to be truthful or truthful
–a person’s propensity to engage in unlawful action
–a person’s propensity for aggression
–a person’s propensity to use drugs
Broadly speaking, the admissibility of character evidence in Colorado courts is governed by Colorado Rules of Evidence (“C.R.E.”) 404, 405, and 608. Under those rules, character evidence is generally banned where it is offered “for the purpose of showing that [a person] acted in conformity therewith on a particular occasion.” C.R.E. 404(a). Put in other words, character evidence offered to show generally that a person has a specific type of character and must have committed a particular action in conformance with that character is inadmissible in court. However, there are multiple exceptions to this general ban on character evidence.
Specific Instances of Conduct are not Character Evidence and are Admissible under C.R.E. 404(b)
In particular specific instances of conduct can be admissible under C.R.E. 404(b) as long as the offered evidence meets certain requirement. C.R.E. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Under the rule, specific instances of conduct are technically not character evidence, and therefore admissible, where it is offered for another purpose other than to show that a person generally has a particular type of character and acted in conformity with that character on a particular occasion. In determining whether specific instances of prior conduct offered as evidence are admissible, Colorado courts have enumerated a 4 part test. Specifically, courts are to consider:
(1) whether the offered evidence relates to a material fact;
(2) whether the evidence is logically relevant;
(3) whether the logical relevance is independent of the intermediate inference that the defendants have bad character; and
(4) whether the probative value is substantially outweighed by danger of unfair prejudice.
People v. Spoto, 795 P.2d 1314 (Colo. 1990). Where a party can satisfy the requirements of this test and can point to some other reason as to why the offered conduct is relevant other than it shows the party is generally of a certain type of character, the specific instance will be admissible. Examples of other reasons a specific instance of conduct may be relevant are given in C.R.E. 404 and include offering the conduct to prove:
–lack of mistake or accident
Certain Character Evidence is Admissible under C.R.E. 405
While C.R.E. 404(a) generally prohibits the admissiblity character evidence, C.R.E. 405 provides for exceptions and governs how character evidence may be admitted when it is admissible. In particular, C.R.E. 405(b) provides that:
Except as limited by §§ 16-10-301 and 18-3-407 , in cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct.
Examples of civil cases where character or a trait of person is an essential element of a charge, claim or defense include negligent entrustment cases, defamation cases, wrongful death cases, and child custody.
More specifically, in negligent entrustment cases the plaintiff will have to prove that the defendant entrusted something to a person whom she should not have based on some character trait of that person – for example, that the person has a careless or reckless character. Similarly, for defamation cases the alleged defamatory statements are usually directed towards the plaintiff’s character – that is, the defamatory statement impugned the plaintiff’s character. In wrongful death cases the character of the decedent is an element of damages in the form of work habits, criminal record, and other traits that would affect a decedent’s future earnings. And for child custody cases, the fitness of the parents to be good caregivers is almost always at issue which inherently involves their character as good parents. Accordingly, specific instances of conduct are admissible in these types of civil cases since character is at issue.
In contrast to cases where character is at issue, in cases where character is not at issue but character evidence is admissible for other reasons, C.R.E. 405(a) provides that it may only be admitted in the form of reputation or opinion testimony. That is, specific instances are not allowed but instead character evidence is limited to general statements such as:
“I have known the defendant for a long period of time – approximately 10 years, I am good friends with him, and it is my opinion based on my interactions with him that he does not have a propensity to use drugs.”
This is an important difference since specific instances of conduct can be much more persuasive and telling than a person generally testifying about their opinion of a person or that person’s reputation in the community.
Character Evidence Specifically against Witnesses
While C.R.E. 404 and 405 are generally directed towards character evidence for persons in general, including the parties involved, C.R.E. 608 is a separate rule that specifically governs character evidence admissible against witnesses – that is, people that are specifically going to give testimony under oath.
In particular, in addition to the different types of character evidence and prior acts that are allowable under C.R.E. 404 and 405 as discussed above, C.R.E. 608 also allows for the admission of character evidence that refers to the truthful or untruthful character of a witness. This is known as impeachment evidence since it weighs on the credibility of the witness.
Under C.R.E. 608 the credibility of a witness may be attacked or supported by testimony in the form of an opinion or reputation where that evidence refers only to character for truthfulness or untruthfulness. Put in other words, under C.R.E. 608 a witness may always testify in the form of an opinion or reputation as whether a different witness has truthful or untruthful character. Notably, however, it is improper and inadmissible for a witness to comment on the specific testimony of another witness – that is, a witness is not allowed to testify that he heard another witness’s testimony and that witness was lying.
However, while reputation or opinion testimony for untruthful character of a witness is always admissible under the rule, evidence of truthful character is only admissible after that witness’s character has already been attacked. Put in other words, only after a witness has been attacked as having untruthful character may testimony be offered that the witness is, indeed, truthful. See Admissibility of Testimony Concerning the Truthfulness of Untruthfulness of a Witness, 35 Colo.Law. 37 (2006).
Further, while character evidence relating to truthfulness is generally limited to reputation and opinion testimony only, specific instances of conduct may be inquired upon on cross-examination within the discretion of the court. More specifically, any witness can be cross-examined on specific acts of her own conduct that relates to untruthfulness, and truthfulness after her character has been attacked.
Additionally, if a witness gives opinion or reputation testimony as to the truthfulness of another witness, the witness offering the testimony can be cross-examined on specific instances of conduct of the other witness to see if the testifying witness is aware of them. See C.R.E. 608(b): Challenging Witness Credibility, 29 Colo.Law. 99 (2000); Impeachment, 22 Colo.Law. 1207 (1993). The rationale for this is that if a witness is going to testify to the truthfulness or untruthfulness of another witness, the extent of the testifying witness’s knowledge of the other witness’s action should be tested. For example:
“You testified on the direct that the other witness was generally of untruthful character. Are you aware of the time that witness found a wallet and returned it to its owner? “
Importantly, where specific instances of conduct are inquired upon, extrinsic evidence to prove that conduct is inadmissible. That is, if a witness is asked about a specific instance of conduct that relates to truthfulness and the witness denies it or denies knowing about it, the cross-examining party is stuck with the witness’s answer and cannot prove that it occurred.
Admissibility of Prior Felony Convictions as Character Evidence
Lastly, in addition to character evidence that is generally governed by the Colorado Rules of Evidence, certain character evidence is governed by statute. Specifically, Colorado Revised Statute (“C.R.S.”) § 13-90-101 govern the admissibility of a witness’s felony convictions. Under the statute, in civil cases a witness may be questioned about prior felony convictions that occurred within the last 5 years leading up to the time of testimony.
The rationale behind this is that felony convictions are severe enough that they inherently call into question the credibility of a witness. Accordingly, felony convictions within the last 5 years, no matter the nature of offense, are admissible against any witness as affecting his credibility. Importantly, in contrast to general inquiries of specific conduct of truthfulness admissible under C.R.E. 608(b) discussed above, proof of felony convictions is provable by extrinsic conduct if the witness denies those convictions.
Overall, while there is a general prohibition against character evidence, there are many exceptions under which character evidence may be admitted.
–Specific instances of conduct may be admitted against a person under C.R.E. 404(b) where the conduct is being offered for some other reason other than to show the person is generally of a certain type of character and acted in conformity with that character on a particular occasion.
–Specific instances of conduct may be admitted against a person under C.R.E. 405(b) where character is an essential element of a claim, charge, or defense.
–Reputation or opinion testimony as to the untruthfulness of another witness is always admissible under C.R.E. 608.
–Reputation or opinion testimony as to the truthfulness of a witness may only be admitted under C.R.E. 608 once a witness’s character for truthfulness has been attacked.
–Specific instances of untruthful character may be inquired upon for any witness and, when a witness testifies as to the truthful or untruthful character of another witness, specific instances of the other witness’s conduct may be inquired upon to see if the testifying witness is aware of them under C.R.E. 608(b).
–Felony convictions of a witness within the last 5 years are admissible under under C.R.S. § 13-90-101 and extrinsic evidence can be used to prove the convictions if denied.
© 2016 J.D. Porter, LLC; Jordan Porter. Denver, Colorado.