- Why you are using the evidence? The reason you’re using character evidence will dictate whether and how it should be used. Are you using it to prove conduct? To prove character when character itself is in issue? To attack or support a witness’s credibility? See Evid C §§780, 785–787, 1100. Evidence of a person’s character is inadmissible if offered in a civil action to prove that the person acted in conformity with that character except if offered to prove a relevant fact or to prove character when it’s the ultimate fact in dispute.
- Is it admissible? Research the statutes and case law that support, or arguably support, admission of the opinion character evidence. Note that a witness’s good character may not be shown in a civil case if it hasn’t been previously attacked. Evid C §790.
- Could it backfire? Consider the ramifications of using the evidence substantively or to attack or to support credibility. For example, does the evidence open the door to negative testimony about your client or one of your witnesses?
- Would the witness who’s character is at issue have to testify? Evaluate whether the witness for or against whom you wish to use character evidence must testify for the evidence to be admissible.
- Should you wait for cross? Choose whether to bring out the evidence through cross-examination or through direct examination of your own witness.
- Do you know the basis for the opinion? Review the information on which the character witness will base his or her opinion. This goes back to question #3—could this backfire?
- Does the character witness know the whole story? Ascertain what other information may be known to opposing counsel, whether to tell the character witness about it, and whether that new information changes the character witness’s opinion.
As with reputation evidence, the character witness must be shown to have enough information on which to base an opinion. Evid C §800. See People v Ogg (1968) 258 CA2d 841, 846 (lay witness’s opinion must be based on own perception).
For guidance on admitting and objecting to character opinion evidence in both civil and criminal cases, turn to CEB’s Effective Introduction of Evidence in California, chap 14 and Jefferson’s California Evidence Benchbook, chap 35.
Other CEBblog™ posts you may find useful:
- How to Cross-Examine on Reputation
- 3 Times Not to Ask Leading Questions on Cross
- Expert Tip: Use Jury Instructions in Your Opening and Closing
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