Delaware Trial Handbook § 20:7. EVIDENCE OF CHARACTER

In criminal cases, evidence offered by an accused of a pertinent trait of his or her own character is admissible for the purpose of proving that the accused acted in conformity therewith on a particular occasion, and the prosecution is entitled to have admitted similar evidence of character offered to rebut the evidence offered by the accused.75 A character trait is “pertinent” if it logically refutes any element of the offense alleged.76 Similarly, evidence of a pertinent trait of character of a victim of the crime is admissible when offered by an accused, as is rebuttal evidence offered by the prosecution.77 Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the initial aggressor is also admissible.78 In a prosecution for a sex crime, neither opinion evidence nor reputation evidence nor evidence of specific instances of the complaining witness’s sexual conduct other than with the defendant is admissible to prove consent of the victim.79

When the government is permitted to introduce rebuttal evidence of the defendant’s or victim’s character, including the victim’s character as to peacefulness,80 this does not automatically permit the government to introduce rebuttal evidence of any kind touching on character. The court must balance the probative value of the proffered rebuttal evidence against the countervailing danger of prejudice. The government has the burden of demonstrating that the risk of prejudice is overbalanced by need and good faith.81

In both civil and criminal cases, evidence of a witness’s character for untruthfulness is admissible to attack the credibility of the witness, but evidence of the truthful character of the witness is admissible only after the character of the witness for truthfulness has been attacked.82 An exception is in prosecutions for sex crimes. In such cases, the defendant may, under certain circumstances, be permitted to attack the credibility of the victim with the evidence of the victim’s sexual conduct.83 It is not permissible for one witness to attempt to bolster the credibility of another witness by attesting to the credibility of that other witness.84

Other than the foregoing, evidence of a person’s character or a character trait is not admissible in a civil or criminal case for the purpose of proving that the person acted in conformity therewith on a particular occasion.85 Generally, character evidence is deemed to be of slight probative value and potentially prejudicial. It tends to distract the trier of fact from the central question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good and punish the bad because of their respective characters, despite what the evidence in the case shows actually happened.86

Evidence in the form of expert testimony that a party fits a particular “profile” such as the profile of a pedophile, is not admissible as it amounts to an opinion about a party’s character for the purpose of showing that he or she acted in conformity therewith.86.1

Character evidence, when admissible, may be submitted only by testimony as to the reputation of the party or witness for the particular character trait that is relevant.87 Ordinarily, the character witness testifies as to his or her residency or employment in the community where the party or witness lives or works and as to the witness’s awareness of the reputation of the party or witness in such community for the particular trait or traits about which the witness will testify. The witness is then asked what that reputation is. The opposing party is entitled to inquire on cross-examination as to relevant specific instances of conduct,88 and is entitled to offer witnesses who may testify as to the bad reputation of the party or witness.89 The theory of permitting cross-examination into particular instances of conduct is that since the character witness testifies as to what he or she has heard, questions as to specific instances “tend to shed light on the accuracy of hearing and reporting.”90

However, Delaware Rule of Evidence 405, which deals with proof of character, permits proof of specific instances only on cross-examination91 or as part of the case in chief where the character or a character trait of a person is an essential element of a charge, claim or defense.92 Accordingly, a party may not offer evidence of specific instances of conduct for the first time on rebuttal.93

For character evidence to be admissible, the specific evidence demonstrating character must not be too remote in time.94

75. D.R.E. 404(a)(l).

76. See Manna v. State, 945 A.2d 1149, 1155 (Del. 2008); Wilkinson v. State, No. 199, 2009, Ridgely, J. (Del. Sept. 14, 2009), disposition reported at 979 A.2d 1111 (Del. 2009) (TABLE).

77. D.R.E. 404(a)(2).

77. D.R.E. 404(a)(2).

79. 11 Del. C. § 3509. If the prosecutor offers evidence, or the victim gives testimony, relating to the victim’s sexual conduct, the defendant may cross-examine on the subject and offer rebuttal evidence. 11 Del. C. § 3 509(c).

80. D.R.E. 404(a)(1), (2).

81. State v. Long, Cr. A. No. K91-12-0047, slip op. at 14-15, Steele, J. (Del. Super. July 23, 1992), aff’d mem., 628 A.2d 84 (Del. 1993).

82. D.R.E. 405(3). See also § 14:5.

83. 11 Del. C. § 3508. See also § 14:6.

84.  Graves v. State, No. 144, 1993, slop op. at 6, Walsh, J. (Del. Aug. 1, 1994) (ORDER), disposition reported at 648 A.2d 424 (Del. 1994) (TABLE).

85. D.R.E. 404(a); Mercedes-Benz of North America, Inc. v. Norman Gershman’s Things to Wear, Inc., 596 A.2d 1358, 1365 (Del. 1991).

86. State v. Long, Cr. A. No. K9l-12-0047, slip op. at 14, Steele, J. (Del. Super. July 23, 1992), aff’d mem., 628 A.2d 84 (Del. 1993).

86.1. State v. Floray, 715 A.2d 855, 862-65 (Del. 1997), aff’d on other grounds, 720 A.2d 1132 (Del. 1998).

87. D.R.E. 405(a).

88. See D.R.E. 405(b).

89. D.R.E. 404(a)(1).

90. Fed. R. Evid. 405 advisory committee’s note.

91. D.R.E. 405(a).

92. D.R.E. 405(b).

93. United States v. Herman, 589 F.2d 1191, 1197 (3d Cir. 1978), cert. denied, 441 U.S. 913 (1979); Fed. R. Evid. 405 advisory committee’s note. For a discussion of cross-examination on character issues, see § 14:5.

94. State v. Callaway, Cr. A. Nos. 586-12-0070-0071, slip op. at 23, Chandler, J. (Del. Super. July 29, 1988), aff’d mem., 565 A.2d 279 (Del. 1989) (evidence of events four, six and eight years prior too remote).

© 2010  David L. Finger