703.3Character Generally [Rule 404(a)]

The Basic Rule

Rule 404(a) – Character Evidence Not Admissible to Prove Conduct; Exceptions

G.S. 8C-404(a).

This entry addresses “character evidence generally.” For more information about using evidence of a person’s prior acts, see the related Evidence entry on Other Crimes, Wrongs, or Acts [Rule 404(b)].

Legal Overview

Rule 404(a) establishes the baseline rule that character evidence is generally not admissible in a criminal trial for the purpose of showing “propensity” – that is, for the purpose of showing that the person likely acted in a way that is consistent with that character trait on a particular occasion. See, e.g., State v. Payne, 328 N.C. 377 (1991); State v. Yancey, 155 N.C. App. 609 (2002).

If the evidence is offered for some purpose besides showing propensity, then Rule 404(a) does not mandate its exclusion, although other rules of evidence may still limit its admissibility. See, e.g., State v. Johnston, 344 N.C. 596 (1996) (state’s evidence that victim was peaceful and unarmed on the night of the murder was not offered to show the victim’s propensity, but rather to show that the murder must have been committed with premeditation and deliberation); State v. Watson, 338 N.C. 168 (1994) (defendant’s evidence about victim’s character was not offered to show propensity, but rather to show the defendant’s own state of mind and fear of the victim, so Rule 404(a) did not exclude it); but see State v. Shoemaker, 80 N.C. App. 95 (1986) (evidence of victim’s violent conduct properly excluded where there was no evidence defendant was aware of it, so it was not relevant to show defendant’s fear of victim).

Character evidence offered to show a propensity to act in conformity with that trait must fall into one of the three exceptions listed below to be admissible.

Character of the Accused

Even if he does not testify, the defendant may offer evidence of a “pertinent trait” of his character. G.S. 8C-404(a)(1). However, “[p]ursuant to this rule, an accused may only introduce character evidence of ‘pertinent’ traits of his character and not evidence of overall ‘good character.’” State v. Mustafa, 113 N.C.App. 240 (1994), cert. denied, 336 N.C. 613 (1994). In other words, vague or non-specific testimony about the defendant’s overall “good reputation in the community” or the fact that he or she is a “good person” is generally inadmissible under this rule, because such testimony does not address a specific pertinent trait. See, e.g., State v. Squire, 321 N.C. 541 (1988) (trial court properly excluded testimony about defendant’s general reputation in the community); State v. Wagoner, 131 N.C. App. 285 (1998) (trial court properly excluded evidence regarding defendant’s “general psychological make-up,” since it was not pertinent to sexual assault charge).

If the proffered evidence relates to a pertinent trait of the accused, then it should be allowed. See State v. Bogle, 324 N.C. 190 (1989) (to be pertinent, the trait must “bear a special relationship to or be involved in the crime charged”); State v. Squire, 321 N.C. 541 (1988) (a trait is “pertinent” if it is relevant to the charged offense).

Common examples of traits that may be deemed pertinent to a criminal trial include:

1. Law Abiding Nature
   Defendant’s "law abiding nature" is almost always considered relevant in a criminal case. See, e.g., State v. Banks, 191 N.C. App. 743 (2008). However, the absence of a criminal record is not admissible as “evidence” of defendant’s law abiding nature, because it only proves that the defendant was never convicted – it does not prove he or she never committed any crimes. See State v. Bogle, 324 N.C. 190 (1989).
2. Peacefulness
   If the charged offense involved violence, evidence of defendant's peaceful character may be relevant. See, e.g., State v. Banks, 191 N.C. App. 743 (2008); State v. Murphy, 172 N.C. App. 734 (2005), rev’d on other grounds, 361 N.C. 164 (2006).
3. Honesty
   The defendant's honesty or truthfulness may be relevant, but only if those traits are relevant to an offense such as embezzlement, larceny, or false pretenses; if the charged offense does not involve honesty or truthfulness, the traits are not pertinent. See, e.g., State v. Valladares, 165 N.C. App. 598 (2004) (defendant’s truthfulness was not pertinent, and therefore inadmissible, in drug trafficking case); State v. Moreno, 98 N.C. App. 642 (1990) (evidence of defendant’s honesty, loyalty, and generosity were irrelevant and not pertinent to cocaine charges); see also State v. McKissick, 271 N.C. 500 (1967) (similar ruling in robbery case).

If the defendant offers evidence of a pertinent trait of his character, the state may offer contrary character evidence. G.S. 8C-404(a)(1). If the defense does not introduce character evidence under this rule, the state is not permitted to raise the issue. See State v. Lynch, 334 N.C. 402 (1993); State v. Taylor, 117 N.C. App. 644 (1995).

Character of the Victim

Evidence of the victim’s character may be introduced in two circumstances.

1. Pertinent Trait
   The defendant may introduce evidence of a “pertinent trait” of the victim’s character. G.S. 8C-404(a)(2). The most common example is evidence of the victim’s violent character, offered when the defendant is claiming self-defense. See State v. Jacobs, 363 N.C. 815 (2010). The evidence is relevant as a pertinent trait in such a case because it may show that the victim was the initial aggressor. See State v. Watson, 338 N.C. 168 (1994). However, if the defendant is not claiming self-defense, then the victim’s alleged violent character is not a pertinent or relevant trait, so the evidence should be excluded. See State v. Goodson, 341 N.C. 619 (1995) (in homicide case where defendant claimed death was an accident, victim’s reputation for violence was not admissible because it was not relevant); State v. Abraham, 338 N.C. 315 (1994).
   Evidence regarding irrelevant character traits or the victim’s overall “bad reputation” or “bad character” should not be permitted under this rule, because such evidence does not specifically address a “pertinent trait” of the victim. See, e.g., State v. Vestal, 278 N.C. 561 (1971) (evidence of victim’s general moral character was not admissible in homicide case – victim’s character was not in issue, so the proposed testimony was not relevant); State v. Cronan, 100 N.C. App. 641 (1990) (evidence of victim’s character for drunkenness was irrelevant and properly excluded in sexual assault case because “victim's alcohol consumption with other people in party settings has no tendency to prove that the victim consented to sexual activity with the defendant on the day in question”).
2. Peacefulness
   In homicide cases, the rule permits the state to offer evidence of the victim’s character trait for “peacefulness” in order to rebut a claim by the defense that the victim was the first aggressor. See State v. Faison, 330 N.C. 347 (1991); State v. Temples, 74 N.C. App. 106 (1985). However, the state may only offer this evidence in rebuttal, not during its case in chief, even if the defense forecasts in the opening statements that the issue will be raised in the trial. See State v. Faison, 330 N.C. 347 (1991); State v. Buie, 194 N.C. App. 725 (2009).

The character evidence permitted under this rule is distinct from the rules regarding the limited admissibility of evidence about a victim’s past sexual behavior in rape and sex offense cases. For more information on that topic, see the related Evidence entry on Victim’s Past, Sex Offenses [Rule 412].

Character of Witnesses

If any person, including the defendant or the victim, testifies as a witness at trial, his or her character is subject to impeachment and proof pursuant to Rules 607, 608, and 609. See G.S. 8C-404(a)(3); see also G.S. 8C-405. For more information about each of those rules, see the following related entries:

Proving Character [Rule 405]

Who May Impeach [Rule 607]

Evidence of Character, Conduct [Rule 608]

Impeachment with Prior Conviction [Rule 609]

Other Persons

The character of a person other than a defendant, victim, or witness is not admissible to show the person’s propensity to act in conformity with that character trait on a particular occasion. See State v. McBride, 173 N.C. App. 101 (2005) (testimony of officer that non-testifying occupants of defendant’s motel room had reputations as users and dealers of illegal drugs, offered solely for the purpose of showing that they were likely engaged in such behavior in the defendant’s presence, was inadmissible); State v. Winfrey, 298 N.C. 260 (1979) (“The general rule is that evidence of the character of a third person who is not a witness or a party to an action is inadmissible.”).