Character/Habit/Custom
Category > Character/Habit/Custom
Updated 2/26/2024The trial court erred by excluding evidence of the victim’s violent character at defendant’s murder trial where defendant argued self-defense. Defendant was convicted of murder but the trial court prejudicially erred by excluding evidence under Evidence Code section 1103 (a) showing the victim’s prior acts of domestic violence. The evidence would have supported the self-defense theory and it did not matter whether defendant knew of the victim’s character for violence.id: 27004
The trial court erred at the penalty phase by allowing the prosecutor to cross-examine defense character witnesses with irrelevant incidents taken from a psych report that was not in evidence.The trial court erred by allowing the prosecutor to cross-examine defense character witnesses with details from a psychiatric report (referencing criminal incidents about which they were unaware). When the witnesses testified favorably about defendant’s character, the prosecutor would read details of irrelevant incidents from the report. The prosecutor’s use of the report was improper especially where the report itself was never admitted into evidence and no foundation for its admission was presented. However, the error did not require penalty phase reversal given the strength of the evidence, the nature of the penalty phase defense and the admonitions about how the report was to be used.id: 20448
Court erred in allowing cross-examination of defendant's mother as to specific instances of misconduct.At the penalty phase defendant's mother testified to a number of adverse circumstances that defendant experienced early in his childhood. She did not testify generally as to his good behavior. The court erred in allowing the prosecution to cross-examine the witness and introduce evidence that defendant engaged in criminal misconduct throughout his early years. The error was harmless where the incidents in question were relatively innocuous.id: 12798
Truth-in-Evidence clause does not authorize the use of specific acts to prove or rebut a defendant's character.The trial court erroneously allowed the prosecution to introduce evidence of a prior drug-related conviction to rebut defense testimony concerning the defendant's drug use. Contrary to the prosecutor's contention, the California Constitution's Truth-in-Evidence clause (Article 1, section 28(d)) did not abrogate the Evidence Code's foundational criteria for the admission of character evidence. However, the error was harmless where there was no reasonable probability of a different result had the trial court excluded evidence of the prior conviction.id: 15976
The court erred by excluding expert testimony that defendant was passive after the witness refused to say he was 100 percent certain defendant would not commit a violent act. The trial court erred by excluding the testimony of an expert who would have described defendant's passive personality. The court applied an incorrect standard by requiring the witness be 100 percent certain that defendant would not commit a violent act before the proffered testimony could be admitted.
id: 18958
Defendant was essentially coerced into entering into a disadvantageous stipulation by an erroneous evidentiary ruling that would have allowed testimony regarding the victim's nonviolent character.The prosecutor proposed to call the victim's mother to testify as to her son's nonviolent and religious nature. The trial court ruled the evidence would be admissible, so the defense offered to stipulate to certain facts in this regard. However, because defendant did not offer any evidence that the victim acted aggressively, the trial court erred under Evidence Code section 1103 in ruling the prosecutor could present evidence of his peaceful and nonviolent nature. This ruling essentially coerced the disadvantageous stipulation by defendant. However, the error was harmless where it was not reasonably probable that defendant would have achieved a better result had the evidence been excluded.id: 16937
Updated 3/4/2024The trial court did not err by admitting a video clip where defendant was discussing an unrelated crime. The trial court did not err by admitting a video where defendant was shown telling an undercover officer about an unrelated crime involving a Mercedes. The evidence was not admitted to show defendant’s character or disposition to commit the charged offense. id: 27731
Updated 2/26/2024Prosecutor properly cross-examined witnesses who testified to defendant’s good character by asking if they would change their mind if they knew he had committed other specific acts.Defendant argued the prosecutor improperly cross-examined the character witnesses by asking if they would change their opinion if they knew about other specific acts the defendant had committed. Because the witnesses testified to an opinion about defendant’s good character based in part on their perceptions, it was proper to cross-examine them about whether it would change their opinion if they knew or learned about instances of defendant’s bad character.id: 27258
Defendant’s letter threatening violence was properly admitted as rebuttal evidence in the penalty phase after defendant presented extensive good character evidence.Defendant argued the trial court erred by allowing evidence of the defendant’s past violence during penalty phase rebuttal when he did not present evidence of his nonviolence. However, the defense did present evidence of the defendant’s good character and the letter threatening violence pertained to that evidence.id: 24829
The trial court did not err by giving the optional part of CALCRIM 105, which says the lack of conversation about a person’s truthfulness can show the person has a character for truthfulness.There is an optional part of CALCRIM No. 105 - the standard credibility instruction, which informs the jurors that if people who know a witness have not discussed his character for truthfulness, they may conclude his character for truthfulness is good. The trial court did not err in giving the instruction when, in response to defense counsel’s question, a witness said that in the last 15 years, no one he knew had discussed the victim’s credibility. There is no requirement that good character testimony be provided before giving the instruction. The optional instruction did not create a false impression, and it was not an unconstitutional permissive inference because the suggested conclusion was a matter of common sense.id: 24661
The court did not err in allowing the prosecutor to question a witness about defendant’s reputation in the neighborhood after the defense placed his reputation in issue.Defendant argued the trial court erred in admitting a hearsay statement made prior to the murder to the effect that defendant wanted to “shoot up the block”. He claimed the statement rendered the trial unfair because it allowed the jury to find premeditation based on inadmissible hearsay. However, the question was not one that elicited hearsay because it concerned whether the witness had heard something at odds with his earlier statement about defendant’s reputation for nonaggression. id: 21152
The trial court did not err in failing to hold a hearing on the proffered evidence of the young victim’s prior sexual history because the alleged conduct was not similar and not probative of their credibility.Defendant was convicted of molesting his girlfriend’s young sisters. He argued the trial court erred in failing to hold a hearing to determine the admissibility of the victims’ sexual history under Evidence Code section 782. However, the court did not err in failing to hold a hearing because the alleged conduct was not sufficiently similar to the charged conduct in this case and therefore not highly probative of the victim’s credibility.id: 23265
The trial court did not abuse its discretion in refusing to allow evidence of prior molest allegations the victim made against someone else.Defendant was convicted of committing lewd acts against a minor. He argued the trial court erred by refusing to allow evidence of prior molestation allegations made by the victim against someone else. However, the court did not abuse its discretion in excluding the evidence where defendant offered no credible evidence that the victim had previously made false accusations. id: 20932
The trial court did not err by admitting rebuttal evidence in the form of specific instances of defendant’s bad character to impeach his testimony and that of the defense psychiatrist.Defendant testified on direct and cross-examination that he did not hate women or mistreat prostitutes, denied excessive substance abuse, and denied carrying a bag of guns. The trial court did not err by admitting rebuttal evidence in the form of specific instances of conduct relevant to these assertions. The rebuttal evidence was properly admitted to attack the basis of the defense psychiatrist’s testimony and as direct impeachment of defendant’s testimony.id: 20745
The trial court did not err by allowing impeachment of the defense psychiatrist with incidents that were relevant to the expert’s opinion that defendant did not have the character of a murderer.Defendant argued that trial court permitted improper impeachment of the defense psychiatrist and that the prosecutor’s questions were an improper attempt to offer specific instances of irrelevant and inadmissible character evidence on a specific occasion. However, the cross-examination was proper as the incidents mentioned were all relevant to the expert’s opinion that defendant’s character was inconsistent with that of a murderer.id: 20744
Section 782 which allows for the impeachment with the complaining witness’s sexual conduct, does not apply to prior false claims of rape.The procedure required by Evidence Code section 782 for admitting evidence of a victim’s prior sexual conduct to attack the victim’s credibility does not apply when the defense attempts to introduce evidence that the victim made prior false complaints of rape. Moreover, the trial court did not err in excluding evidence of the victim’s prior false complaints of rape under section 352 because there was no conclusive evidence showing the prior complaints were false. id: 20406
The trial court did not err by excluding evidence of prior sexual conduct of the rape victim where her bias against defendant was proven otherwise. Defendant was a pastor who was convicted of sex offenses involving two teenage girls. He argued the trial court violated his due process and confrontation cause rights by excluding evidence of one of the girls prior sexual conduct. However, it was the repercussion from the girl’s conduct with her boyfriend, not the sexual assault conduct itself, that was relevant to show the girl’s bias against defendant. Other witnesses testified that the girl hated defendant because of his interference in her personal life.id: 20405
The trial court did not err in precluding evidence that the victim had previously left the same bar with other men.The defense sought to introduce evidence showing the rape/murder victim left the bar with other men prior to the date of the murder. The court ruled that to the extent the defense sought to imply that the victim had a history of consenting to sex with men after leaving the bar, the proffered evidence violated Evidence Code section 1103, subd.(c)(1). Defendant argued the ruling violated his right to present a defense. However, in addition to the prohibition set forth in section 1103, subd.(c)(1), the defense inference was speculative and the evidence inadmissible.id: 18449
Evidence of a witness's reputation for violence was not relevant to the self-defense claim where defendant did not know of the reputation. The trial court did not err in precluding the defense from admitting into evidence statements contained in a search warrant
affidavit pertaining to a prosecution witness's possession of explosives. Defendant argued the evidence was relevant to his claim of self-defense. However, defendant presented no evidence
that he knew of the witness's reputation for violence, so the evidence was not relevant.id: 19823
The trial court did not err in excluding evidence of a third party's drunk driving offenses to show that he, and not the defendant, was the driver of the car that killed the
victims.Defendant was convicted of two counts of gross vehicular manslaughter while intoxicated after two people were killed in a single accident. His defense at trial was that Cotham drove the car and he was a passenger. Cotham was listed as a victim of a separate charge of DUI causing injury. Defendant sought to admit evidence of Cotham's prior drunk driving incidents. The evidence was not admissible under Evidence Code section 1103, subd.(a) because character evidence is not admissible to support a claim of third party culpability. The evidence was likewise inadmissable under section 1101, subd.(b) because the prior acts did not show Cotham's plan to drive drunk and were not sufficiently unique to establish the identity of the driver.id: 19326
The admission of evidence of defendant's lavish lifestyle after her husband's death was not erroneous.Defendant was convicted of capital murder of her husband. She argued the court erred in admitting evidence of bad character. However, evidence of her lavish lifestyle after the killing was relevant to prove her financial motive for the killings. It was also admissible to rebut the claim that she was upset about his death. Evidence that she dressed provocatively or taught her bird how to call the detective derogatory names was not admissible, but its erroneous admission was harmless.id: 18625
Once the witness offered an opinion of defendant's good character, the prosecutor could ask about her knowledge of defendant's misconduct even if she professed ignorance.A defense witness testified that defendant is "good people." In cross-examining the witness, the prosecutor asked whether the witness had knowledge of certain criminal acts committed by defendant. Defendant argued the prosecutor should have asked what the witness had heard, not what she knew. However, the prosecutor was entitled to test the witness's opinion by asking about her knowledge of the defendant's misconduct, even if the witness professes ignorance.id: 18590
Expert testimony about the victim's mental illness did not justify an instruction that character may be considered in determining witness credibility.A psychologist, testifying for the defense, diagnosed the alleged assault victim as having a borderline personality disorder. Defendant argued this evidence supported an instruction within CALJIC 2.20 that evidence of the character of a witness may be considered in determining witness credibility. However, the testimony addressed the witness's capacity and her perception of reality, not her character for untruthfulness. The doctor provided no testimony of the witness's character for untruthfulness and there was no error in omitting the instruction.id: 18362
Failure to object to ex post facto application of new Evidence Code provision regarding violent character constituted a waiver of the issue.Defendant argued the court erred in applying Evidence Code section 1103 (amended after the crime but before trial) to admit evidence of his character for violence. He claimed that admitting this evidence violated the Ex Post Facto Clause of the United Stated Constitution. However, not only did trial counsel fail to object to use of the amended statute, he urged its application. This permitted the defense to prove specific instances of violence by the victim.id: 16417
Excluding evidence of third party's violent character did not prevent defendant from putting in evidence of third party culpability.Defendant moved to admit evidence that Trone (who defendant argued shot the victim) was prone to criminal activity. However, because the evidence proposed by defendant would delve deeply into Trone's past, and because Trone was being tried separately, the trial court did not abuse its discretion in concluding the evidence would require an undue consumption of time and mislead the jury. The ruling did not prevent defendant from putting on evidence of third party culpability. It merely precluded him from putting on time-consuming hearsay evidence that was not particularly probative.id: 15975
Court did not err in hinging its ruling on the admissibility of victim character evidence on the condition that the prosecutor could then introduce evidence of defendant's bad character.Defendant sought to introduce evidence that the murder victim struck a woman on the head with his fist. He argued the court erred in allowing the testimony only on condition that if such testimony was admitted evidence of defendant's bad character would also be admissible. He argued the evidence was not offered pursuant to Evidence Code section 1103, subdivision (a) - which allows prosecution rejoinder under subdivision (b) - but pursuant to section 1101, subdivision (b) which does not allow such prosecution rejoinder. However, defendant made no such distinction in the trial court. Moreover, the attempted distinction was unavailing and the prosecution's rebuttal evidence would have been proper.id: 12797
Even if Proposition 8 abrogated Evidence Code section 1101 it was reenacted by vote of the Legislature in 1986.Defendant argued the admission of defendant's prior uncharged misconduct with the complaining witness' sister violated Evidence Code section 1101, subdivision (a), which prohibits the admission of evidence of a person's character to prove his or her conduct on a specified occasion. The People argued that as a result of the enactment of article 1, section 28, subdivision (d) of the California Constitution, section 1101 is no longer in effect. However, even if the Proposition 8 provision did abrogate section 1101, the Legislature reenacted section 1101 when it amended that statute in 1986 by more than a two-thirds vote.id: 12799
Evidence of defendant's nonviolent crimes was admissible to impeach testimony of defendant's good character.In cross-examining defendant's character witnesses at the penalty phase, the prosecutor brought out evidence of defendant's commission of numerous nonviolent crimes. While the evidence would be inadmissible in the prosecution's case-in-chief, it was admissible to impeach testimony of defendant's good character. The trial court did not err in failing to instruct sua sponte on the limited use of impeaching evidence.id: 12800
Provision allowing evidence of defendant's violent character if defendant offers evidence of the victim's violent character is not unconstitutional.The 1991 amendment to Evidence Code section 1103, subd. (b) allows the introduction of evidence of a defendant's violent acts and reputation for violence, if a defendant presents evidence as to the bad acts or reputation of the crime victim. The statute which merely allows such evidence in rebuttal to defense evidence, does not offend constitutional principles of due process.id: 12801
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245