Gerald Chargin

Santa Clara University Law School

The various rules of evidence which permit or exclude, the introduction of’ one’s character or re ut- tion, as ossessing probative value re s~ baseu upo . a policy of’ the lav/, the aiir of which is to svfegrd the courts against the risks of erroneous verdicts. Ms oil s jumes that truth in the Ion. run -ill est e attained cy die exclusion of certain kinds of evi.ence or if Ilonable, upon certain conditions im osed, in order to _uide the deli rerations of the jud e or juries to just verdicts.

1 os c of the a plic-tions of character or as it is sometimes designated, moral evidence, which shall hereafter be mentioned ana applied no concrete cases are part of the Eliminative Rules o• Evidence ado zed ‘ y all juris.ictions as a cart of the sub­stantive lav/, for the pur oss of shutting out certain kinds of evidence, which if not so excluded would result, a3 an almost necessary consequence, in the ere – tion of three distinct and out­standing evils in the tria’ of issues. One of these evils that immediately suggests itself to the mind, u inn the admission of certain evidence W-uld he che dndue Prejudice created in the minds of a jury. v concrete example might well serve to bring out this point. lor instance, the jurors u on hearing of an accused criminal’s record, may find him guilty of the act of which he is charg­ed without actually believing that he did it, due to the effect which such evidence has upon the ordinary mind, and consequently the juror would generally be guilty of this fallacious line of .

if reasoning to-wit: I shall vote his convict!onfor perchance he is not guilty of the present crime charged, he has certainly been guilty of others and ought therefore be unished”,- or the juror might convict merely because the accused seems to be a fit person to punish generally. In practice this ia not the actual process of re soning, anc. if the same we e called to the attention of a juror.

he would in fact deny it, cut instinctively and unconsciously, it is the lo.ical result of the operation of a person’s mind under such eircur 3 cances, and so she law very judiciously stews in ar.d that such evidence shall not generally be admitted.

n:z’aev h r- that, mi t follow from the a.miss .on of such e idence is that it would result in an unfair surprise to a pe.son in litigation. Ihis policy of exc’usiou or eliminatio rests upon the danger shown by experience that an opponent may be overcome by false evidence merely for the lack of an o poortuni ^y before rrxal to prepare a refutation for the same, when in oint of fact, refutation would be an easy nu tter. Hie mere surprise of itself is no consideration, but when a party to the action is surprised to fin., for example, false evidence produced, it being a matter totally foreign to the case, it mi ht be unfair to him to admit it, if he could not have known in advance, by the exercise of ordinary prudence and uili^ence, the nature and tenor of such false evidence.

.1 th_rd evil consequence might also follow from the admiss­ibility of cert .in brands of evidence, which if applied has for its dir c •; operation the creation of confusing and collateral issues xn the trial of a case. This manifest injustice is also guarded against by these eliminative rules. The policy of the law in this regard, rests u on the danger, as demonstrated by concrete cases that a collection or cumulation of complex and unproven details on collateral anu foreign issues, may so distract the attention of the jurors that the real issues in a particular controversy will be lost sight of, and thereby prompt the jury to render their verdict by reason of some insignificant detail, which have partdcularily impressed their minds, for some unknown reason, in complete derogation and disregard of the evidence actually presented pertinent to the main issues involved in the case. By way of illustr tion, let us consider an action for assuit and battery. It would not be permitted on the part of the defendant to relate the details prior to such assuit to show the motives and impulses of the “.rties that leac. un to the affray, it is not  remitted y evidence to consider the past rel tions of the parties, covering a 1 their dealt a hap s: their character: and other par tic lar events extending over oeriod of r.any years; ana the causes engendering their acrimonious attitude toward each otheIt is quite apparent to everyone now far they mi hit go afield in t .is matter, if permitted. Put no, the law asse ts that you cannot confuse the minds of the jurors, with trivial, unrelated, immaterial details.

An additional re-sor immediately presents itself in the con­sideration. of this ‘-cint. If multitudinous issues were permitted to he raisea by a policy permitting wide latitude in such invest­igations, consider the effect it would ha e u on the administration of justice. Long and tedious trials would be in order; a never- ending line of .vitnesses would be called to testify uoon the entire history of an individual or controversy; the functions of the ^vernment’s judici 1 department would le greatly impaired •nd ins officer’s time absorbed in useless and protracted litigation. rfhe policy of the law in its prohibitions against Undue Prejudice, Unfair Surprise, and Confusion of Issues, will be seen predominating in all the particular cases to be hereinafter discussed, concerning the non-admissibility of evidence relating to character or reputation.

To begin with.let us consider the value of character evidence as apolied in criminal cases. It is a familiar rule of evidence that it is imoroner, at the crial of a defendant, for a crime to prove that he has committed other crimes having no connection with the one under investigation, for the purnose of disparaging the re utation of the accused in the minds of the jur:7. Acts of immorality are not legally relevant, ano. should not be dragged into , the issues to prejudice the defendant, or to create a probability of guilt. Thi3 is a very elementary rule of character evidence and is sanctioned by practically all the judicial decisions throughout the States of the Union, and also h- s been the prevailing weight of authority in In cl and for many years. However in th very early history o: Hnglana, and occasionally in this country, this rule hau been disregarded, much to the detriment of those up before the bar of justice for various offenses. person charged with a crime, though having a very bad past record, ight at the tire when he is being held, h ve reformed, of itself, ana standing alone, the proof of. a past misdeed is no proof of the crime in question. this tie has been well established by the current judicial decisions of our courts, and as an illustration, is exemplified and settled beyond all doubt in a leading case: State vs Lagage, (57HII-245) ,also cited in ignore*s Cases on Evidence, (Second ld.p.69), decided by a New Hampshire court in 1S75, the same being cited by all Commentators, in judicial t.ecisions and in the text-books, on that point. In this case, Lap ge was indicted and convicted for the murder of ,’Josie Lang- maid, while on ne.- way to school. The prosecution claimed the murder vas committed in the attempted perpetration of’ rape unon the deceased; and in furtherance of this claim, the State had one Julienne Rousse testify that some four or five years previous the defendant had on one occasion in Canada committed race u :on her. To this evidence, the defendant’s counsel objected, cut to no avail. An appeal was taken from the verdict on the correctness of this ruling. The nisi prius court admitted the evidence for the purnose of showing the intent or motive in the crams, but the appelate court stated that in this case ther , was no question of motive or intent. Cert’inly the commission of a rape in Canada in 1871, would not show any motive for committing the same in i<ew Hampshire in 1875, nor does it disclose any intent to do so. there was no logical connection between the commission of the former crime upon Julienne Rousse, and the .murder of Josephine Langm&id as the law requires. The matter simply reduces itself to attacking the prisoner’s reputation by wroof of particular acts which the authorities clearly show to be inadmiss-also

The courtvlaid down the propositions which are now the law to-dsy, that it is not permissible for the prosecution to attack one character of the prisoner uni ess he first uts the seme in issue: r.or is it permissible to show in the defendant, a tendency or disnosit on to commit crime; neither is it permissible go offer in eviience other crimes, unless they are so connected ‘ey circum­stances with the ‘ rticul ,r crime in issue, as that the proof of one fact with its circumst nces has a dir ct ‘-earing upon the issue in the trial.

The ruling laid down in the above case, as expressive of the . , weight of authority nor prevalent in the Unite.. States and in England, has not always ‘ en followed by some European nations,those laws are used  on a different system of jurisprudence than our own. or. the contrary, all the courts in France, for example, have for many years, by uniform decision -emitted a very wide discretion in the investig tior. of any and all acts of misconduct upon the art of the defendant, irrespective as to their remoteness to the crime in issue, for the puroose of determining character.

The extent of such investigations can be realized quite readily by an ins tan. case actually tried before a French Court. The facts in substance can be related thusly: A lady of high standing, Baroness ce Valley, was found strangled in her ap -rtment in Paris. She was rich and made a bus..ness of lending money at usurious rates. Bobbery was the object of her murderers. A party of several young men, Kiesgen, Ferrand, Truel and others were charged with the murder.Kies gen was the son of a or s -er us merchant, and appeared to be well-dressed and well educated young man. He had no regular occupat­ion and his father furnished him with pocket-money; the others were of not so respectable surroundings. The Presiding Juge Poupardin conducted the opening examination at the fcfiial and the substance of his remarks were these;”Hone of you have a criminal record: but that is far from saying that you hnve a good record, You, Kiesgen; seem to have a mode of life not at all creditable. You frequent the low saloons of the Latin Quarter, you were an habitu4 of the Harcourt Cafe. You have been getting all the money you could from women.

Your mistress Jeanne rTevost, alias hargot, gave you 15 francs a day from her earnings as a prostitute. You are a panderer of the worst sort. In your cell at liazas Prison you kept writing to her, asking her to send you cash. Unfortunately for you, she was at that time herself in St. Lazare Prison.” “As for you Truell. alias Julien, alias Curlyhead, you are the son of a mechanical draftsman at Chareton. After having a job as an apprentice in a factory, you were discharged for a most brutal assault. After that you lived off your mother. Then you became an habitue like Kiesgen of the saloons and women of the Latin Quarter. You seem to have been one of a gang of bicycle thieves. In short after starting as an honest working man, you gave up that pursuit, and became an agent for houses of ill-fame. You see what you have been brought to by bad company”. The judge also proceeded in the same manner with the other defendants, and after that the evidence was put in relating directly to the crime charged. The jury found three of the defendants guilty and they were sentenced to hard labor for life. (Albert Bataille “Causes Criminelles et Mondaines”, 1896, p.249). The jury no doubt was influenced in their verdict by the independent crimes of the defendant; for who could entertain an unprej>udiced and impartial mind in the face of such iniquities. Besides the undue prejudice created by such extraneous admissions, it naturally leads to a confusion of the triable issues in the case; not to mention the unfair surprise to the defendants at the bar who certainly did not go prepared before such tribunal with the means with which to deny or palliate the accusations made by the court; and in an early case decided in England the injustice of such procedure was quite apparent to the presiding judge, Lard Holt, who put an end to the practice which had theretofore prevailed in England and which still prevails in France today. Thus at a trial before him (Lord Holt 1688) of one Harrison for the murder of one Dr. Clench, the

ls no notice; ana how 7 issues are to be raised to perplex me and the jury? Away, tnat ought net to be; that is nothing to this natter. ”

(Liwes of the Chief Justice of England, Yol. ill, p.24. Amer. ed.) hence, cne can readily see, by a review of the above two cases, that which now prevails is the most fair and just, to one charged with a public offense.

In line with the rrinciples laid down by the court in the :r Irate vs. lepage (Supra), the conduct of the defendant on such conduct has no other purpose in being reviewed, except to show the motive or intent in icing the art complained of. In reference to a charge of uttering counterfeit bills, coin, or forged ruments, it has long been the settled pract. m o admit evidence of the uttering of similar counter­feit r:ney or forgeries to other persons about the sane time, due no Icuit, in the iiffieultp to otherwise prove the offense. (People v. Jarell. ~C lal. 515; Feorle v. HcGlade, 139 Cal.66, Commonwealth v. Irene, 4 Hass. 43). It is likewise the same rule in the case of receiving stolen property, in order to show that the party receiving the sane had knowledge that they were stolen, the scienter being one – of the elements of the crime charged.

Ihere has been considerable discussion whether in the charge of obtaining goods or money under false pretenses, it is relevant to show that the defen:ana n :    ie other similar pretenses at other

times and places. Some courts have held such evidence to be ir­relevant, yet by the weight of authority, such representations or transactions are received, when they tend to show a common motive or intent existing in the minds of the accused, or when tne trans­actions are so connected in point of time and so similar in their relation, that the same motive may reasonably be imputed to

This same principle has been applied, in prosecutions for robbery, larceny, extortions and other cases, (People vs. Fehrenbach, 102 Cal, 394); also where in a murder by a defendant of Ms wife’s parents shortly after the killing of his wife, the former murders were admissible to show the same to be a part of a common plan to wipe out the entire family, and to rebut the claim that the deaths were caused through accidental means. (People vs. Craig, 111 Cal. 460). Poison schemes have also come within the rule announced in the above cases. However, many of these cases are exceptions and since their admissibility tends to prejudice the jurors against the accused, they should, (in the language of the learned Judge, in the case of People vs. Lane, 100 Cal. 379) be excluded, in order to give the defendant the benefit of the doubt when the evidence is so questionable that the ^residing judge cannot clearly perceive the connection between them.

In those instances where evidence of character or reputation is admissible in criminal cases, it must be especially noted that the same can only be introduced by the defendant, himself by way of defense to the crime charged. Natural to expect, the testimony will go to his good character, for the purpose of inducing the jury to believe,from the improbability that a person of good character should have conducted himself as alleged, that there must be some mistake or misrepresentation in the evidence produced on the part of the prosecution. (8 Cal.Juris.54). An offer of one’s good character to rebuts an inference of guilt, must, and does have some effect upon the minds of the jurors especially when the other evidence in the case bearing directly on the crime is circumstantial in its nature, since forsooth, it is not our best citizens in our communities that go about committing crimes. As soon however, as the defendant brings his character into the case by showing it off to his advantage, it then permits the prosecution to refute such evidence by proving that his character is otherwise.

This proof of bad character, after having been put in issue by the defendant, must be limited to evidence derived from the general reputation of the defendant existing in the com unity in which he lives, ani it rust be further restricted only to the particular trait of character involved in the offense. ihere is some confusion as to the term character, and reputation, and they are generally used interchangeably. The Code of the State also refers to them in a loose manner. Character is that personal in­herent attribute and manifestation of good morals and nobility of action, and when attested to, or attributable to one by others, it practically amounts to reputation. What is wanted in all these instances, is the common opinion of one’s estimate and worth by others upon which there is a general concurrence. Hence, a common concurrence of opinion as to one’s character, in a narrowly re­stricted circle of a particular class of people is inadmissible. (People vs. Harris, 169 Cal.53). Any other proofs of good character other than by reputation in the community is not permissible,and following this rtile, it has been quite generally held that one cannot prove his character by means of his honorable discharge from the army. (People vs. Echman.72 Cal.582). When a witness testifies for and on behalf of the defendant, he will not be permitted to testi­fy to any particular acts or facts, for the purpose of having the court or jury draw a conclusion of the defendant’s reputation, nor shall a witness be permitted to describe the defendant’s character or disposition from his own experiences with the defendant or from personal observation.

Eefore a witness may testify to the general reputation of another, it must be shown that he is sufficiently acquainted with the people in such community, to render it likely for him to obtain information as to what others know bearing upon such reputation. (People vs. Pauli, 58 Cal. 594). Proof of good reputation may not only be offered through witnesses who have heard the reputation of -the defendant discussed, but the same may also be furnished by the testimony of witnesses, who in effect testify that they have not heard ones reputation discussed, provided that they have been in the community where they would have heard it spoken of, had it so been discussed. This a:plication is based upon the reason that it must be prosuued, that a character of a person is good, if the people of a ccamunity in -hich he lives have not discussed it. here it not the rule most citizens would suffer in reputation before a court of justice. Since according to a predominant characteristic in mortal man’s nature, it is only those of notorious character, that receive sufficient attention from their fellow- citizens, as would provoke discussion by them, and soley on account of such notoriety.