You may be able to offer a witness’s opinion or reputation about a character trait that matters to the charge. In a California criminal case, Evidence Code section 1102 allows the defendant to offer that kind of evidence to support an inference that they acted consistently with the trait. If you introduce it, the prosecution may offer rebuttal about that same trait. The judge decides what is relevant and what may be presented; a positive character witness does not prove innocence or guarantee the evidence will be admitted. (Evidence Code § 1102; § 352)
Before deciding to call someone, discuss the precise trait, the witness’s basis for knowing your reputation or forming an opinion, and the possibility of prosecution rebuttal with your lawyer. The decision should be about a trait connected to the charged conduct, not simply whether you are a “good person.”
What the choice involves
| Before offering a witness | What to work through with counsel |
|---|---|
| Which trait? | Identify the exact character trait and explain how it relates to the alleged conduct. A favorable trait that has no meaningful connection to the charge may not help. |
| What can the witness say? | Section 1102 describes opinion or reputation evidence. It does not make specific good acts the defendant’s affirmative method of proving character. Clarify whether the witness would describe an opinion or community reputation and the basis for it. |
| What may the prosecution ask or offer? | The prosecution may rebut the same trait once the defense introduces evidence about it. Counsel should consider what adverse opinion or reputation evidence may be raised and whether it could distract from the defense. |
| What limits or instructions may matter? | The court may limit evidence under section 352. Counsel can consider whether to request a character instruction tailored to the trait and evidence. The California instructions address both the relevant trait and rebuttal; the cross-examination “have you heard” questions and answers are not proof that the named conduct occurred. (CALCRIM Nos. 350–351) |
These are questions to assess before trial, not a checklist that guarantees admission. The proposed trait, the witness’s actual foundation, the charge, and the evidence expected in rebuttal all matter. Evidence Code section 352 permits the court to exclude evidence when its probative value is substantially outweighed by undue consumption of time or a substantial danger of undue prejudice, confusing the issues, or misleading the jury.
Keep different character evidence questions separate
Section 1102 is an exception to Evidence Code section 1101, which generally limits using character to argue that someone acted in accordance with it on a particular occasion. Prosecutors may sometimes offer an uncharged act for a specific, non-character purpose; that is a different analysis explained in our guide to uncharged acts at trial.
Evidence about a victim’s character raises a separate rule under Evidence Code section 1103. Prior sex-offense or domestic-violence evidence may also fall under separate statutory provisions; see prior sex-offense evidence and prior domestic-violence incidents. Those issues have different conditions and should not be treated as part of the section 1102 choice described here.
Records and questions to prepare
Before deciding whether to call a character witness, gather the information your lawyer needs to evaluate the choice:
- The exact charge and the character trait you are considering.
- The witness’s relationship to you and the basis for the witness’s opinion or knowledge of your reputation.
- What the witness would actually say, in the form the court permits.
- Any prosecution notice, motion, or expected evidence that may address the same trait.
- Whether a proposed character instruction fits the evidence and should be requested.
Do not coach a witness or ask anyone to change an account. Give your lawyer accurate information about the witness and let counsel handle contact and trial preparation.
If you are deciding whether to present character testimony in a California criminal case, the Law Offices of David S. Chesley can discuss the proposed witness and the case record with you. Call (800) 755-5174.