Tuesday, April 20, 2021
Federal Rule of Evidence 405(b) states that
When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
Cases in which character is an essential element include negligent hiring/supervision, entrapment, defamation, and insanity cases. And, as Rule 405(b) makes clear, in this limited constellation of cases, the relevant person's character can be proven through specific instances of conduct (e.g., a city bus driver's history of DUIs in a negligent hiring action against the city.
As the recent opinion of the Supreme Court of Georgia in Truett v. State, 2021 WL 1521552 (Ga. 2021), makes clear, however, Georgia's counterpart to Rule 405(b) is broader.
In Truett, "Christopher Everett Truett was convicted of malice murder and related crimes arising out of the beating death of his girlfriend's two-year-old son, Wyatt Pruitt." At trial, Truett testified to his own good character and called character witnesses, but the judge prevented him from asking his character witnesses "if they would be comfortable with him around their children" or about specific instances of his good character.
After he was convicted, Truett appealed, citing to Georgia Rule of Evidence § 24-4-405(b), which states that
In proceedings in which character or a trait of character of a person is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character, proof may also be made of specific instances of that person's conduct. The character of the accused, including specific instances of the accused's conduct, shall also be admissible in a presentencing hearing subject to the provisions of Code Section 17-10-2.
As the Supreme Court of Georgia noted, (1) the italicized portion of the Georgia rule does not exist in the federal rule; and (2) the italicized portion of the Georgia rule applied in Truett's case because Truett testified to his own good character. That said, the Supreme Court of Georgia found that the trial judge's error was harmless because there was strong evidence of Truett's guilt and because the judge actually did allow some character witnesses to testify about specific instance of Truett's good character.