EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, August 25, 2012

Character Of The Matter: Court Of Appeals Of Kentucky Finds Generalized Character Evidence Properly Excluded

Kentucky Rule of Evidence 404(a)(1) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:        

(1) Character of accused. Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same....

Of course, a key word in Rule 404(a)(1) is the word "pertinent." A defendant's character for peacefulness would be pertinent in a homicide trial but likely not pertinent in a fraud trial. And, at that fraud, trial, the defendant's character for truthfulness would be pertinent while his character for violence would not be. As the recent opinion of the Court of Appeals of Kentucky in Crabtree v. Commonwealth, 2012 WL 3538316 (Ky.App. 2012), makes clear, however, a character witness' generalized claim that the defendant is a good person or has a good reputation in the community is never pertinent character evidence under Rule 404(a)(1).

In Crabtree, Samuel Crabtree was convicted of multiple counts of possession of materials portraying a sexual performance by a minor. After he was convicted, Crabtree appealed, claiming, inter alia, that the trial court erred by precluding his character witness from testifying before the jury at trial. The trial court did allow Crabrtree to make an offer of proof in the form of an avowal by the character witness before the judge, in which he claimed

that he had known Crabtree for Crabtree's entire life and that Crabtree had a good reputation in the community. He agreed that if illegal material had accidentally appeared on Crabtree's computer, it would be wrong for Crabtree to go to jail. But he testified that he was not there and did not know what had happened.

The court's opinion in Crabtree is not a model of clarity, but the gist of it is that the type of generalized testimony proffered by Crabtree is not the type of testimony about a specific character trait that can be admitted under Rule 404(a)(1). Accordingly, the Court of Appeals of Kentucky found that the trial court did not err in excluding it.



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