The 2020 Rules on Evidence restated for greater clarity the rules on character evidence. It also introduced a significant change by providing that character may be proved not only by reputation evidence but also by a witness’s opinion and, if character itself is directly in issue, by evidence of specific instances of conduct.
Uses of character evidence
In order to better appreciate the rules on character evidence, it is helpful to approach the topic by understanding (1) the uses of character evidence, and (2) the methods of proving character.
Character as circumstantial evidence
Character evidence may be used as circumstantial evidence or as direct evidence.
When character is used as circumstantial evidence, the purpose is to prove that a person acted on a particular occasion in conformity with his character, or in other words, to show a propensity on the part of a person. This is also known as the character-for-propensity evidence rule. Hence evidence that a person is of honest reputation is used to prove the inference he did not defraud the plaintiff.
The general rule is that character is not admissible as circumstantial evidence. As put in Section 54 of Rule 130, “[e]vidence 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.” The reason for this is that a court should try the case and not the person.
Character as a rule cannot be used as circumstantial evidence in a civil case. Section 54(b) of Rules 130 provides that “[e]vidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in a civil case.” Hence in a breach of contract case, a defendant cannot present evidence that he has a reputation for honesty and integrity in order to negate the charge that he violated the terms of the contract. The exception wherein character evidence may be used circumstantially in a civil case is when it is used to impeach a witness by showing that he has a propensity to lie, as well as to rehabilitate the witness who has been so impeached. (Section 11, Rule 132; Section 54[c], Rule 130).
Character as circumstantial evidence in criminal cases
In a criminal case, however, character may be used as circumstantial evidence in two important situations: (1) an accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged, and (2) the character of the offended party or victim may be proved if it tends to establish in any reasonable degree the probability or the improbability of the offense charged. (Section 54[a], Rule 130).
The Mercy Rule
The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charge. This is known as the Mercy Rule. In order to combat the prosecutorial might of the State, an accused is allowed to cast reasonable doubt on his guilt by proving his good moral character. Thus an accused in a murder charge may be allowed to prove that he has a reputation for being a law-abiding and peaceful person. A person charged with estafa may introduce a character witness who will testify that in his opinion the accused is an honest and scrupulous person.
The prosecution as a rule may not introduce evidence of the accused’s bad moral character. However if the accused offers evidence of his good moral character, the door is opened for the prosecution to adduce evidence of the accused’s bad moral character on rebuttal. (Section 54[a][2], Rule 130). Under the Federal Rules of Evidence, the prosecution may also introduce evidence of the accused’s moral character if he has attacked the victim’s character. (See FRE 404[a][2][B][ii]). There is no equivalent provision in our Rules on Evidence.
Character of the offended party or victim
Section 54(a)(1) of Rule 130 provides that “[t]he character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.” Hence in a murder case, the accused may introduce evidence of the victim’s violent character in order to bolster his claim of self-defense. On rebuttal, the prosecution may in turn proffer evidence of the victim’s peaceable character.
The text of Section 54(a)(1) does not mention any rebuttal requirement for the prosecution to adduce evidence of the victim’s character, unlike in the case of the accused’s character. However it is opined that the prosecution may introduce evidence of the victim’s character only on rebuttal, that is, if the accused had introduced evidence of the victim’s character. (See Rule 404[a][2][B], Federal Rules of Evidence). Otherwise, evidence of the victim’s character would be irrelevant or unfairly prejudicial to the accused.
Character as direct evidence
Where character itself is directly in issue in a case, there is no question as to the admissibility of character evidence. For instance, in a civil action for libel where the plaintiff sues the defendant for calling her an adulteress, the defendant may introduce evidence that the plaintiff was indeed an adulteress while the plaintiff may introduce evidence of her chaste character. In a child custody case, the character of the parents is directly in issue and thus the wife may introduce evidence that her husband was a child-beater.
Methods of proving character
Under the 1989 Rules on Evidence, the prevailing rule was that character may be proved only by reputation evidence; hence a witness’s opinion or evidence of specific instances of conduct were not admissible to prove character.
The 2020 Rules on Evidence introduced an important innovation when it provided that character when relevant may also be proved by testimony in the form of an opinion. This recognizes the fact that reputation evidence is often nothing more than “opinion in disguise.” (SC Committee Explanatory Notes).
Evidence of specific instances of conduct is not admissible to prove character and this rule is retained in the 2020 Rules. While intuitively, evidence of past conduct would be the best form of character evidence since “actions speak louder than words,” the majority view is that they should be excluded since a case may get bogged down or diverted to trying collateral matters. Thus an accused may not prove his good moral character by evidence of past good acts.
However the 2020 Rules provide that evidence of specific instances of conduct is admissible to prove character when character itself is directly in issue. The Rules also provide that on cross-examination of a character witness, inquiry into relevant specific instances of conduct is permitted. (Section 54, last paragraph, Rule 130). The proper function of such cross-examination is not to prove character but only to test the witness’s credibility. To prevent abuse, the cross-examiner must have a good-faith basis for the question; it should be based on reliable information that the prior act actually occurred and not on mere rumor or unsubstantiated report. (SC Committee Explanatory Notes).
An illustration is when a character witness testified that the accused in a bribery case was possessed of a law-abiding reputation. On cross-examination, the witness may be asked whether he had heard that the accused was arrested for receiving stolen goods. Such inquiry tends to shed light on the accuracy of the witness’ hearing and reporting or of his opinion.
The specific instances of conduct must be relevant to the character testified to by the character witness. Thus if the character witness testified that the accused was of a peaceable character, an inquiry into whether the accused was arrested for issuing a bouncing check would be irrelevant.
A character witness is not allowed to cite specific instances of a person’s conduct as basis for the witness’s reputation or opinion testimony. The witness’s testimony should be limited to the person’s reputation or the witness’s opinion of his character; otherwise, the witness would be circumventing the ban against evidence of specific instances of conduct.
Specific instances of conduct in rape and child sexual abuse
In a rape case, evidence of the victim’s past sexual conduct with the accused is admissible for the purpose of proving consent. Evidence of the victim’s past sexual conduct with persons other than the accused is inadmissible except if the purpose is to show that the other person was the source of semen, injury, or other physical evidence. (See Rape Shield, Sec. 6, R.A. No. 8505; FRE 412[b][1][A]).
Under the Child Sexual Abuse Shield Rule, evidence of specific instances of sexual conduct by the victim is inadmissible except to prove that a person other than the accused was the source of semen, injury, or other physical evidence. (Sec. 30, Rule on Examination of a Child Witness).
As a final note, the evidence of character used to impeach the adverse party’s witness is limited to reputation evidence. (Section 11, Rule 132). Hence the witness may not be impeached by past acts of lying or by an opinion that he is dishonest.
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