Is Character Evidence Admissible in Criminal Trials in Nevada?

Posted on September 17, 2018

Character evidence may be admissible in Nevada criminal trials depending on whether the evidence concerns the defendant, a witness, or the victim.

1. Character evidence of defendants

In Nevada criminal trials, defendants are allowed to present proof of their own good character in attempt to disprove the criminal charge(s). But defendants take a big risk when presenting character evidence about themselves:

Once defendants offer evidence of their good character, they “open the door” to the prosecution rebutting the defendants by offering evidence of their bad character. With some exceptions, prosecutors are generally allowed to introduce character evidence unless the defendants “opens the door” to it first.

Note that defendants who plead insanity automatically open themselves up to having the prosecution bring character evidence against them. Also note that when defendants claim that police entrapped them, the prosecution may introduce proof of the defendants’ predisposition to commit the underlying crime.

Many defendants choose never to take the witness stand in their own defense precisely because it insulates them from being cross-examined and potentially opening the door to unwanted character evidence. Even if defendants “have nothing to hide,” prosecutors are very skilled at finagling damaging testimony out of innocent defendants on the witnesses stand.

1.1. “Prior act” evidence

Evidence of past crimes or other “prior acts” is generally inadmissible during trial except to prove motive, opportunity, intent, preparation, knowledge, identity, or absence of mistake or accident. Note that the prosecution may introduce “bad act” evidence if:

• it is relevant to prove an element of a crime (such as intent to commit burglary), and
• its probative value is not substantially outweighed by the risk of unfair prejudice.

2. Character evidence of victims

Defendants are allowed to introduce proof of a victim’s character if it is relevant to the underlying crime. But once defendants do this, prosecutors are free to try to rebut that specific character evidence.

Example: James is on trial in Nevada for punching Tom. James claims he acted out of self-defense. James calls a witness to testify that Tom had a violent reputation. Then the prosecutor can call a witness that claims Tom was peaceful.

In the above example, the prosecutor would not be able to call a witness to testify that James had a violent reputation. This is because James never introduced character evidence about himself, only Tom; the prosecution is allowed to rebut only the character evidence that James introduces.

Note that special rules apply when the victim is a rape victim. Nevada’s “rape shield law” limits the admissibility of evidence regarding the victim’s character and prior behavior.

3. Character evidence of witnesses

Any witnesses who take the stand open themselves up to having their testimony impeached for lack of truthfulness. Attorneys may try to introduce evidence of a witnesses’ mendacity or “prior inconsistent statements” that contradict their testimony.

Legal References:

1. NRS 48.045  Evidence of character inadmissible to prove conduct; exceptions; other crimes.1.  Evidence of a person’s character or a trait of his or her character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

   (a) Evidence of a person’s character or a trait of his or her character offered by an accused, and similar evidence offered by the prosecution to rebut such evidence;

   (b) Evidence of the character or a trait of character of the victim of the crime offered by an accused, subject to the procedural requirements of NRS 48.069 where applicable, and similar evidence offered by the prosecution to rebut such evidence; and

   (c) Unless excluded by NRS 50.090, evidence of the character of a witness, offered to attack or support his or her credibility, within the limits provided by NRS 50.085.

   2.  Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person 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.

   3.  Nothing in this section shall be construed to prohibit the admission of evidence in a criminal prosecution for a sexual offense that a person committed another crime, wrong or act that constitutes a separate sexual offense. As used in this subsection, “sexual offense” has the meaning ascribed to it in NRS 179D.097.

2. NRS 48.069  Previous sexual conduct of victim of sexual assault: Procedure for admission of evidence to prove victim’s consent.  In any prosecution for sexual assault or for attempt to commit or conspiracy to commit a sexual assault, if the accused desires to present evidence of any previous sexual conduct of the victim of the crime to prove the victim’s consent:1.  The accused must first submit to the court a written offer of proof, accompanied by a sworn statement of the specific facts that the accused expects to prove and pointing out the relevance of the facts to the issue of the victim’s consent.

   2.  If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the victim regarding the offer of proof.

   3.  At the conclusion of the hearing, if the court determines that the offered evidence:

   (a) Is relevant to the issue of consent; and

   (b) Is not required to be excluded under NRS 48.035,

   –> the court shall make an order stating what evidence may be introduced by the accused and the nature of the questions which the accused is permitted to ask. The accused may then present evidence or question the victim pursuant to the order.

3. NRS 50.085  Evidence of character and conduct of witness.1.  Opinion evidence as to the character of a witness is admissible to attack or support the witness’s credibility but subject to these limitations:

   (a) Opinions are limited to truthfulness or untruthfulness; and

   (b) Opinions of truthful character are admissible only after the introduction of opinion evidence of untruthfulness or other evidence impugning the witness’s character for truthfulness.

   2.  Evidence of the reputation of a witness for truthfulness or untruthfulness is inadmissible.

   3.  Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, other than conviction of crime, may not be proved by extrinsic evidence. They may, however, if relevant to truthfulness, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to an opinion of his or her character for truthfulness or untruthfulness, subject to the general limitations upon relevant evidence and the limitations upon interrogation and subject to the provisions of NRS 50.090.

4. State v. Hubbard, 134 Nev. Advance Opinion 54 (2018).

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.