EvidenceProf Blog

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

Monday, January 14, 2013

The Character of the Matter: Court of Appeals of Idaho Finds Sexual Morality Evidence Should Have Been Admitted

In my forthcoming article, Justice of the Peace?, I note that

it is generally understood that character evidence is especially unreliable for a variety of reasons, including the usual sources of character evidence. "Numerous courts have expressed the same opinion as that espoused by the Vermont Supreme Court in" Wright v. McKee, in which it held that character evidence "is uncertain in its nature-both because the true character of a large portion of mankind is ascertained with difficulty, and because those who are called to testify are reluctant to disparage their neighbors,-especially if they are wealthy, influential, popular, or even only pleasant and obliging."  Of course, when character evidence does not come from neighbors, it often comes from family members, who are especially unreliable given their biases in favor of (and sometimes against) their sons, daughters, parents, brothers, and sisters.

And yet, courts continually allow criminal defendants to present character evidence under the so-called "mercy rule," which also allows for prosecutors to respond in kind. As noted in the recent opinion of the Court of Appeals of Idaho in State v. Rothwell, 2013 WL 53731 (Idaho App. 2013), the vast majority of courts in child molestation cases allow defendants to present evidence of their sexual morality with children. But does this make any sense?

In Rothwell, Randall Rothwell was charged with lewd contact with a minor under 16. According to the prosecution, that lewd contact consisted of acts that the 18 year-old Rothwell committed against a six year-old victim.

At trial, defense counsel informed the court that he intended to call two of Rothwell's friends to testify that in their opinions, based on their observations of his interactions with children, Rothwell was trustworthy with preteen children. The State objected. The district court determined that the proposed testimony was inadmissible because Rothwell's trustworthiness with children was not an element of the charged offense or an element of a defense to that crime, and was therefore irrelevant. The court also concluded that any probative value from the testimony would be outweighed by unfair prejudice and the likelihood that the evidence would confuse and mislead the jury. The court reasoned that even if the evidence possessed probative value, that value was limited because the witnesses could not have observed Rothwell alone with children, and that the introduction of the testimony would lead to "mini trials" to explore specific instances of conduct that would confuse and distract the jury

After Rothwell was subsequently convicted, he appealed, claiming, inter alia, that this evidentiary ruling was erroneous. In addressing this issue, the Court of Appeals of Idaho canvassed precedent from across the country and concluded that

Whether a defendant's morality with respect to minors is a pertinent character trait in cases involving sexual misconduct with a minor is an issue of first impression in Idaho, but most other courts addressing the issue have concluded that traits relating to a defendant's sexual morality with children are pertinent in such cases. State v. Rhodes, 219 Ariz. 476, 200 P.3d 973, 976 (Ariz.Ct.App.2008) (“sexual normalcy, or appropriateness in interacting with children”); People v. McAlpin, 53 Cal.3d 1289, 283 Cal.Rptr. 382, 812 P.2d 563, 572–76 (Cal.1991) (opinion that the defendant was not “given to lewd conduct with children” and was normal in his sexual tastes); State v. Hughes, 841 So.2d 718, 723 (La.2003) (reputation “as a moral person and for safe and proper treatment of young children”); Wheeler v. State, 67 S.W.3d 879, 882 (Tex.Crim.App.2002) (“moral and safe relations with small children or young girls”); State v. Griswold, 98 Wash.App. 817, 991 P.2d 657, 663 (Wash.Ct.App.2000) (“sexual morality”) abrogated on other grounds by State v. Devincentis, 150 Wash.2d 11, 74 P.3d 119 (Wash.2003). See also State v. Anderson, 211 Mont. 272, 686 P.2d 193, 204 (Mont.1984) (orthodox sexual mores); State v. Workman, 14 Ohio App.3d 385, 471 N.E.2d 853, 861 (Ohio Ct.App.1984) (trusted with children); State v. Enakiev, 175 Or.App. 589, 29 P.3d 1160, 1164–65 (Or.Ct.App.2001) (sexual propriety); State v. Benoit, 697 A.2d 329, 331 (R.I.1997) (trustworthiness with children); State v. Miller, 709 P.2d 350, 353–54 (Utah 1985) (sexual morality). A minority of courts take the opposite view. See Hendricks v. State, 34 So.3d 819, 825 (Fla.Dist.Ct.App.2010) rev. granted, 49 So.3d 746 (Fla.2010); State v. Graf, 143 N.H. 294, 726 A.2d 1270, 1274–75 (N.H.1999).

The Court of Appeals of Idaho then agreed with the majority of precedent on the issue, concluding that

Because character traits relating to a defendant's sexual morality with children are pertinent, or relevant, in this type of case, such evidence is admissible under I.R.E. 404(a)(1). We recognize that sexual abuse is usually secret behavior that would not be observed by others, and therefore the opinion or reputation evidence about a defendant's trustworthiness with children may be of marginal persuasiveness. The same can be said, however, of many types of criminal activity. It appears that Rule 404(a)(1) was nevertheless intended to allow an accused the opportunity to present evidence of good character that is pertinent to the nature of the charged offense. The unlikelihood that the character witnesses would have been in a position to witness criminal conduct of the defendant goes to the weight of character evidence, not its admissibility.

This analysis pretty much gets to the root of it. When a character witness testifies that, in his opinion, the defendant has a good character for sexual morality with children, what he is really saying is that he has never seen the defendant act sexually inappropriate around the victim. And, given that such behavior is almost always private, this doesn't really mean much. 

The situation is somewhat similar to character testimony regarding peacefulness. When a character witness testifies that, in his opinion, the defendant is a peaceful, non-violent person, what he is really saying is that he has never seen the defendant act violently. But violence is often public, and you can at least imagine situations where such testimony would have decent relevance. If a character witness saw someone yelling at/threatening/attacking the defendant, and the defendant would not respond with force, that might tell the jury something about the defendant's character for non-violence. But can character evidence really ever tell jurors anything about a person having a good character for sexual morality with children?



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In all cases both with violence and with sex the sample sizes of the person giving the testimony are woefully small. It seems pedantic to argue that a minute difference between woefully awful sampling bias and truly horrible sampling bias is anything to hang a hat on. The basis for the rule is "mercy" and I can't find anything in the ethics of mercy that says be more merciful to people who offend violence norms but less merciful to people who offend sexual norms.

Posted by: Daniel | Jan 14, 2013 6:43:03 PM

Fair enough, and I would probably endorse the position that all propensity character evidence should be inadmissible or at least subject to rigorous Rule 403 scrutiny. All I'm saying is that I can't see any situation in which testimony regarding a defendant's alleged sexual morality with children has any relevance. On the other hand, I could see at least some situations where I would give some weight to testimony regarding a defendant's alleged character for non-violence.

Posted by: Colin Miller | Jan 15, 2013 4:32:59 AM

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