In general, under Evidence Code 1101, so-called “character evidence” is not admissible in a California criminal jury trial to show that a person acted in accordance with his/her character on a particular occasion.1
What this often means for a criminal defendant is that the prosecutor may not introduce evidence of bad acts you committed in the past—criminal or otherwise—in order to show that you committed the crime with which you are being charged.2
Example: Judy is on trial for Penal Code 211 PC – robbery and Penal Code 187 PC – murder . During her cross-examination, the prosecutor gets her to admit that she lost custody of her child in a divorce. He also gets her to admit that she has committed welfare fraud.
These issues are not relevant to Judy’s guilt or innocence in the current case—except to the extent that they suggest to the jury that she is a bad person. Thus, they are character evidence and should not have been admitted in her trial.3
Exceptions to the character evidence rule
It is also important to understand what this California evidence rule does not exclude.
First of all, Evidence Code 1105 EC provides that so-called “habit evidence” is admissible to show that a defendant acted in accordance with his/her habits on a particular occasion.4 In contrast to character evidence—which is evidence about a person’s personal traits—habit evidence is evidence about a person’s regular behavior in a particular situation.5
Second, prosecutors may introduce evidence of your past bad acts in order to show something other than that you committed the crime with which you are being charged. For example, they may introduce character evidence in order to show that you
- Had a motive to commit the crime,
- Had the intent or a plan to commit the crime, or
- Had the opportunity to commit the crime.6
Finally, there are several exceptions to the rule against character evidence in a California criminal trial. These are:
- The prosecutor may introduce evidence of the defendant’s bad character – IF the defendant has first introduced evidence of his/her good character;7
- The defendant may introduce evidence about the victim’s character—and if s/he does so, then the prosecutor may do so as well;8
- If the defendant introduces evidence that the victim has a violent character, then the prosecutor can introduce character evidence showing that the defendant also has violent tendencies;9
- If the defendant is charged with a sex crime, then the prosecutor may introduce evidence that s/he has committed other sex crimes in the past;10
- If the defendant is charged with violating California domestic violence laws, Penal Code 368 PC – elder abuse, or Penal Code 273d PC – child abuse, then the prosecutor may introduce evidence that s/he has committed similar crimes in the past;11 AND
- Certain kinds of character evidence that relate to a witness’s honesty or dishonesty may be introduced to convince the jury that s/he is (or is not) trustworthy.12
In order to help you better understand character evidence in California criminal trials, our California criminal defense attorneys13 will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The general rule, set forth in Evidence Code 1101 EC, is that parties (the prosecution and the defense) in California criminal trials may not present
- so-called “character evidence,”
- in order to show that a person acted in accordance with his/her character on a particular occasion.14
“Character evidence” includes evidence about:
- A person’s personality or propensities,
- The moral nature of a person’s character (i.e., are they a “good person” or a “bad person”), and
- A person’s moral standing in their community.15
Example: Saul is a real estate developer on trial for Penal Code 165 – bribery of county supervisors in Los Angeles. While interviewing witnesses, the prosecutor finds out that Saul got in trouble for rigging an election for student body president when he was in college. It also emerges that Saul’s employees all think he is “shady.”
This evidence could obviously be very helpful in convincing the jury that Saul is the sort of person who would bribe a public official. But because of the rule against character evidence, the prosecutor may NOT introduce it for that purpose.
The major reason why the California rule against character evidence exists is that character evidence tends to confuse issues for (and often “inflames”) the jury.
For instance, it distracts the jury from the main question of what happened on a particular occasion (i.e., whether the defendant committed a crime then). And it may inspire them to use the criminal process to punish a bad person or reward a good person, regardless of the actual issue of guilt or innocence.16
But it is important to understand what counts as character evidence and what does not. Specifically, it is important to understand the difference between character evidence and “habit evidence”—because habit evidence is admissible under Evidence Code 1105 EC.17
Habit evidence is evidence about how a person usually behaves in a certain situation.18 Parties in a criminal case may present habit evidence to show that someone acted, or probably acted, in accordance with their habits on a specific occasion.19
According to Oakland criminal defense attorney Neil Shouse20:
“One way of thinking about the distinction between character evidence and habit evidence is this: Character evidence is evidence about who someone is, or what they are like. In contrast, habit evidence is evidence about what someone usually does.”
Example: Kelly is arrested for Vehicle Code 23152 a VC – DUI on a Saturday night. She decides to fight the charges, arguing that the officer who arrested her got it wrong and she was not actually drunk that night.
The prosecutor may not introduce a witness who will testify that Kelly is a drunkard—that would be impermissible character evidence. But the prosecutor may be allowed to introduce witnesses who will testify that Kelly drinks large amounts at the same bar every Saturday night. That is habit evidence.
As we discussed above, character evidence is only inadmissible for one purpose—proving that a person acted in accordance with their character on a particular occasion. But character evidence may be introduced for other purposes.21
Specifically, character evidence can be admitted at a California criminal trial to help show:
- Motive to commit a crime,
- Opportunity to commit a crime,
- Intent to commit a crime,
- Preparation or plan to commit a crime,
- A person’s knowledge of a fact,
- Absence of mistake or accident, or
- Whether a defendant in a sex crimes case reasonably and in good faith believed that the victim consented.22
Example: Sally is charged with murdering her co-worker Pete. The prosecutor introduces evidence that Sally had been committing embezzlement at their place of employment and that Pete knew about it.
Evidence about Sally’s embezzlement would not be admissible to show that she was a bad or dishonest person. But here the prosecutor is introducing that evidence to show that Sally had a motive to kill Pete (preventing him from turning her in). So the evidence is admissible at Sally’s trial.
The California Evidence Code also sets out several exceptions to the rule against the admission of character evidence in California trials. These exceptions are:
Under Evidence Code 1102 EC, criminal defendants are allowed to offer character evidence to prove that they behaved in a certain way. And if they do so, the prosecution is then permitted to offer character evidence to rebut the defendant’s argument on this point.23
The way this exception would typically work in practice is this: the defendant offers evidence of his/her good character in order to show that it is unlikely that s/he committed the crime. Then the prosecution may offer evidence to show that, in fact, the crime is in keeping with the defendant’s (bad) character.
Example: Matthew is an investment manager on trial for securities fraud. The prosecutor has obtained evidence that, while he was in law school, Matthew created a fake transcript that he used to apply for jobs—and then created a fake paper trail to try to avoid discipline by the university for doing this.
Normally, this evidence about Matthew’s dishonest behavior in the past would be inadmissible. But Matthew introduces a witness who testifies that Matthew has a reputation for honesty and was an exemplary student in law school.
Because Matthew has introduced evidence of his good character, the prosecutor can now introduce the evidence of his bad character to rebut it.24
A criminal defendant is also permitted to offer evidence about the character of the crime victim. (This exception is set forth in Evidence Code 1103 EC.) And, if the defendant does so, then the prosecution can offer their own character evidence about the victim, in order to rebut the defendant’s argument on this point.25
- cases involving violent crimes like Penal Code 242 PC –, and/or
- cases where the defendant is asserting a defense under California self-defense laws,
the defendant may want to introduce evidence that the victim has a propensity for violence. If the defendant does so, then the prosecutor is also allowed to introduce evidence about the defendant’s violent character.26
California’s rape shield law is an important “exception to the exception.”
The rape shield law says that, in criminal cases where the defendant is charged with certain sex crimes—including rape, marital rape, and forcible sexual penetration—the defendant may NOT introduce evidence about the victim’s past sexual conduct or reputation in order to prove that s/he actually consented to the sexual act.27
However, evidence about the victim’s sexual conduct or reputation MAY be introduced to show that the defendant believed that s/he had consented.28
Example: Margaret is accusing John of Penal Code 261 PC – rape. John knows that he can call witnesses to testify that Margaret has a reputation for being sexually promiscuous.
If John’s legal defense is that in fact Margaret actually consented to have sex with him, then California’s rape shield law means that he may not call these witnesses to testify about her reputation.
But if his defense is that he wrongly believed that she had consented, then he may call the witnesses for that purpose.
Under Evidence Code 1108 EC, in a California sex crimes case, the prosecutor is permitted to introduce evidence that the defendant has committed other sex crimes in the past.29
The defendant does not need to have actually been convicted of another sex crime in the past either. The prosecutor can introduce evidence that he was merely arrested in a case where charges were dropped, or that he committed a sex crime for which charges were never filed.30
Also, as with all evidence introduced in California criminal trials, character evidence regarding past sex crimes may be excluded if its value is substantially outweighed by either:
- the probability that it would take too much time to present, or
- the risk that it would either cause undue prejudice against the defendant, confuse the issues, or mislead the jury.31
It is the judge who decides, in his/her discretion, whether or not to exclude sex crimes character evidence for one of these reasons—the most likely potential reason being that it would create undue prejudice against the defendant.32
As is the case with California sex crimes, if you are charged with any of
- California domestic violence crimes,
- California elder abuse crimes, or
- California child abuse crimes,
then the prosecutor may introduce evidence that you committed a similar crime in the past, even though such evidence would normally be inadmissible character evidence. (This exception is set forth in Evidence Code 1109 EC.)33
However, in most cases, the prosecution is NOT allowed to introduce character evidence of past abuse crimes that occurred more than ten (10) years before the current offense is supposed to have happened.34 Evidence of crimes that occurred more than 10 years ago can be admitted only if the judge makes a special determination that it would be “in the interest of justice.”35
Example: Todd is charged with the California domestic violence crime of Penal Code 243e1 PC – domestic battery, based on accusations by his current fiancée. Twelve years ago, he was convicted of Penal Code 273.5 PC corporal injury on a spouse, for an incident between him and his now ex-wife. He received probation for that conviction.
The prosecutor is not allowed to introduce character evidence regarding Todd’s past conviction. That is because it occurred more than 10 years ago.
Also, even under this exception, character evidence of past child abuse crimes may only be introduced after a hearing is held to confirm that the value of that evidence is not outweighed by the likelihood of prejudice, confusion of the issues, or misleading of the jury.36
Finally, there is one very important situation where California character evidence is admissible in court. This is where such evidence is used to attack the credibility of a witness.37
Under Evidence Code 780 EC, character evidence may be used to argue that, since the witness has lied before or has a dishonest character, s/he may be lying now.38
Either side may attack a witness’s credibility by offering evidence about his/her past felony convictions, if these tend to show that s/he is not an honest person.39 But these convictions may not be introduced if
- the witness has received a certificate of rehabilitation for his/her conviction(s), or
- the witness’s conviction has been expunged under Penal Code 1203.4 PC—UNLESS the witness is also the defendant, and s/he is being charged now with a similar crime.40
However, it is not okay to offer evidence about a witness’s bad behavior that did not result in a criminal conviction.41 It is also not okay to offer
- evidence about any aspect of a witness’s character other than his/her honesty or dishonesty,42
- evidence about his/her religious faith or lack thereof,43 or
- evidence about the witness’s good character—UNLESS the other side has already introduced evidence about his/her bad character.44
Example: Carl is the main defense witness in a criminal trial. The defendant has been accused of robbery, and Carl is going to support the defendant’s alibi defense by testifying that the defendant was with him at the time the crime occurred.
But the prosecution has dug up some “dirt” on Carl. Specifically, the prosecutor knows that Carl was convicted of Penal Code 476 PC – check fraud a few years ago, that Carl has been arrested (but never charged) several times for getting into fights at bars, and that Carl is an atheist and has written an article stating that, since there is no God, people should be allowed to do whatever they want.
The prosecution is allowed to introduce evidence of Carl’s check fraud conviction, in order to show that his testimony might not be true. But it cannot introduce evidence of his bar fights, because those don’t say anything about whether he is an honest person. It also cannot introduce evidence about his atheism.
The rule against character evidence is just one of several important evidence rules that govern criminal trials in California.
For example, the California hearsay rule provides that—with many exceptions—so-called hearsay evidence is not admissible in California criminal trials.45 Hearsay is defined as
- any statement that was not made by a witness testifying at the trial,
- that is offered for the truth of its content.46
In addition, a number of evidentiary privileges protect certain individuals from having to testify against certain other individuals. For example, married people have the privilege not to testify against their spouse.47
Whenever any California rule of evidence is violated in your criminal trial, it is your criminal defense lawyer’s job to object to the violation. If s/he does so, and the judge overrules the objection—then you may be able to appeal your criminal conviction because of this.48
Call us for help…
If you or a loved one is in need of help with character evidence and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
1 Evidence Code 1101 EC – Evidence of character to prove conduct [character evidence rule]. (“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”)
2 See same. See also, e.g., People v. Terry (1970) 2 Cal.3d 362, 400.
3 Based on the facts of the same.
4 Evidence Code 1105 EC – Habit or custom to prove specific behavior [habit evidence vs. character evidence]. (“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”)
5 Black’s Law Dictionary (9th ed. 2009), evidence. (“character evidence. (1949) Evidence regarding someone’s general personality traits or propensities, of a praiseworthy or blameworthy nature; evidence of a person’s moral standing in a community. . . . habit evidence. (1921) Evidence of one’s regular response to a repeated specific situation.”)
6 Evidence Code 1101 EC – Character evidence rule. (“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”)
7 Evidence Code 1102 EC – Opinion and reputation evidence of character of criminal defendant to prove conduct. (“In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”)
8 Evidence Code 1103 EC – Character evidence of crime victim to prove conduct; evidence of defendant’s character or trait for violence; evidence of manner of dress of victim; evidence of complaining witness’ sexual conduct. (“(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph 1).(b) In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”)
9 See same.
10 Evidence Code 1108 EC – [Character] Evidence of another sexual offense by defendant; disclosure; construction of section. (“(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”)
11 Evidence Code 1109 EC – [Character] Evidence of defendant’s other acts of domestic violence. (“(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. (2) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant’s commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. (3) Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant’s commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101.”)
12 Evidence Code 780 EC – Testimony; proof of truthfulness; considerations. (“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: . . . (e) [character evidence about] His character for honesty or veracity or their opposites.”)
13 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
14 Evidence Code 1101 EC – Character evidence rule, endnote 1, above.
15 Black’s Law Dictionary, [character] evidence, endnote 5, above.
16 Evidence Code 1101 EC – Character evidence rule, Law Rev. Com. Comment. (“First, character evidence is of slight probative value and may be very prejudicial. Second, character evidence tends to distract the trier of fact from the main question of what actually happened on the particular occasion and permits the trier of fact to reward the good man and to punish the bad man because of their respective characters. Third, introduction of character evidence may result in confusion of issues and require extended collateral inquiry.”)
17 Evidence Code 1105 EC – Habit evidence vs. character evidence, endnote 4, above.
19 Evidence Code 1105 EC – Habit evidence vs. character evidence, endnote 4, above
20 Oakland criminal defense attorney Neil Shouse is an honors graduate of UC-Berkeley and Harvard Law School. He served for five years as a Deputy DA for Los Angeles County, prosecuting more than 60 criminal trials and earning a phenomenal 96% success rate in felony jury trials. Now, as the founding partner of Shouse Law Group, he represents criminal defendants in all aspects of the criminal trial process, including important evidence rules like the character evidence rule.
21 Evidence Code 1101 EC – Character evidence rule, endnote 6, above.
22 See same.
23 Evidence Code 1102 EC – Opinion and reputation evidence of character of criminal defendant to prove conduct, endnote 7, above.
24 Based on the case described in Matthew Goldstein & Alexandra Stevenson, Ex-SAC Trader Was Expelled From Harvard Law School , NYTimes.com, Jan. 9, 2014.
25 Evidence Code 1103 EC – Character evidence of crime victim to prove conduct; evidence of defendant’s character or trait for violence; evidence of manner of dress of victim; evidence of complaining witness’ sexual conduct, endnote 8, above.
26 See same.
27 See same. (“(c)(1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness’ sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness.”)
29 Evidence Code 1101 EC – Character evidence rule, endnote 6, above.
29 Evidence Code 1108 EC – [Character] Evidence of another sexual offense by defendant; disclosure; construction of section, endnote 10, above.
30 See same.
31 See same. See also Evidence Code 352 EC – Discretion of court to exclude [character] evidence. (“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”)
32 See same.
33 Evidence Code 1109 EC – [Character] Evidence of defendant’s other acts of domestic violence, endnote 11, above.
34 See same. (“(e) [Character] Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.”)
35 See same.
36 See same.
37 Evidence Code 780 – Testimony; proof of truthfulness; considerations, endnote 12, above.
39 Evidence Code 788 – Prior felony conviction [as character evidence about a witness]. (“For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless: (a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted. (b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense. (d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).”)
40 See same.
41 Evidence Code 787 EC – Specific instances of conduct [character evidence]. (“Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.”)
42 Evidence Code 786 EC – Character evidence generally. (“Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.”)
43 Evidence Code 789 EC – Religious belief [as character evidence for a witness]. (“Evidence of his religious belief or lack thereof is inadmissible to attack or support the credibility of a witness.”)
44 Evidence Code 790 EC – [Evidence about] Good character of witness. (“Evidence of the good character of a witness is inadmissible to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility.”)
45 Evidence Code 1200 EC – The hearsay rule [compare with character evidence rule]. (“(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible.”)
46 See same.
47 Evidence Code 970 EC – Spouse’s privilege not to testify against spouse [compare with character evidence rule]; exceptions. (“Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.”)
48 Evidence Code 353 EC – Erroneous admission of evidence; effect. (“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence [for example, character evidence] unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”)