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  • Writer's pictureMike Macht


One of the issues that we deal with whenever we’re preparing for a trial is the issue of someone’s character. Sometimes, when I get the discovery in a case the officer will put in a substantial amount of evidence that talks about what a horrible person my client may be. Sometimes, looking at their charges and discussing their case with me, a client says something along the lines of “Ask my mom/pastor/son/grandmother, they’ll tell you that I would never do anything like that.” Then, to prove their point, my client brings in a pile of letters or will provide me a list of witnesses to prove their point. Here’s the problem:

The law is designed to eliminate a juries decision in a criminal case based on “character”. N.C. Rule of Evidence 404 states that evidence of someone’s character is inadmissible to show that someone acted in conformity therewith. It’s a pretty simple rule, it just says I can’t call your mom to the stand to testify that you would never hurt a fly when we’re litigating the issue of whether you committed an assault. And the reality is, it’s a logical rule. Think about it, every time I get in my car, I buckle my seat belt. Every time I’m in the car with my family, I tell them to buckle their seat belt. Does that mean, that I haven’t hopped into my car to go to the convenience store a mile down the road and not buckled up before? Absolutely not. Does it mean that I follow the law in regards to every other aspect of my life? Definitely not. Every event should be judged on that event the same way every person should be judged by their actions and not another person’s.

Now I can raise issues of character in a criminal trial. The rule permits me, as a defense attorney, to raise the argument that my client would never hurt a fly. The State is prevented from arguing a need to convict my client based on his character only UNTIL I raise the issue of his character. So would it help for me to raise character? To argue that issue is never my favorite basis. The reality is, I would prefer to argue the facts of a case, the weaknesses and the strengths. For every mother that has been on the stand to talk about how good of a boy my client is, there’s someone else out there who disagrees with them. But what else? Say I have a client that’s charged with a DUI. Let’s say he had a few other DUI’s in the past, perhaps 11 years ago and 15 years ago. Also, let’s say that in the past year he was charged with being intoxicated and disruptive and was ultimately hospitalized as a result of that offense. Because of the hospitalization, the State dismissed the offense of intoxicated and disruptive. During the trial, my client’s girlfriend takes the stand and testifies that she’s known him for a “long time” and that he abhors alcohol. My client, she says, speaks to everyone about the sins of alcohol, has rehabilitated others, and would surely, never drive impaired because in the past when he has consumed a glass of wine with dinner he’s always called an Uber. My client’s girlfriend, has probably just assisted in destroying his case. Under the rules of evidence, the State would generally be prevented from discussing with the jury, even if my client testified, the fact that he was convicted of those old DUI offenses purely because the offenses are so old. Unfortunately, when the girlfriend raised the issue of my client’s character to avoid alcohol or exercise caution with operating a vehicle if he’s drinking, the State can confront her with his prior convictions and the fact that he didn’t act in conformity with his character then. But those are old convictions, she says, those cases are the reasons why he turned his life around she’ll argue. Now, the prosecutor will truly be salivating! He’s going to confront her with the previous intoxicated and disruptive offense that was dismissed. It was dismissed, she says. Fake news! But the prosecutor will get to go into the details of my client's dismissal and how he "earned" the dismissal. Unfortunately, instead of hearing about a DUI, the jury has now heard and may believe that my client is a habitual user of alcohol. I lost control of the narrative and the trial.

Character evidence can definitely be a double-edged sword. During cases, we’ve used it to the advantage of our clients and I’ve had it cut against my client. Recently, a fellow attorney tried a murder case in which she spent a significant amount of time raising issues as to the victim’s character as an abuser. It was relevant and beneficial to her client because it assisted in establishing in the mind of the jury why her client acted the way she did, why she broke. The beneficial thing that I saw, was that it wasn’t her client’s character she was raising (even though by raising the victim’s character she kind of did bring up her client’s character because there was no evidence that showed she had the same abusive behavior). The trial shifted from did the defendant do what she was accused of to was she justified in doing what she did. Unfortunately, when the issue becomes my client is a good boy and he’ll always be a good boy, juries tend to say “ok, except this time.” The reason? Because we aren't confronting the allegations, we're simply saying my client couldn't have done it because he wouldn't have done it.

Obviously, there are significant exceptions to this rule. Those exceptions are not only listed in the Rules of Evidence, but those exceptions are ones that can be made on a case by case basis. Sometimes I want the jury to just hear that my client is a good boy and he’ll always be a good boy.

Although the rules seem simple, application of the rules on a case by case basis can be complicated. As a result, it’s imperative that if you have a legal issue that you obtain an attorney that is knowledgeable and capable of working with you regarding your particular issue. If you’re looking for help, don’t be afraid to call me and setup a meeting so we can discuss your issue. I can be reached at 828-252-0002.

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