Impeachment and Rehabilitation Evidence in Wisconsin - Character for Good/Evil

By John DiMotto

The use of "general" character evidence is much more restrictive than other forms of character evidence (ie. character for truthfulness; prior criminal convictions) It's admission is governed by the interplay between 904.04(1), 904.05, 904.01 and 904.03.

904.04(1) sets forth that evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion with six exceptions:

1) Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecutions to rebut the same.

2) Evidence of a pertinent trait of character of the victim of a crime [subject to 972.11(2) -- rape shield law] offered by an accused, or by the prosecution to rebut the same.

3) Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

4) Evidence to impeach a witness.

5) Evidence of Truthfulness/Untruthfulness.

6) Evidence of prior convictions.

It is important to note that the first three exceptions only apply in criminal cases. It is also important to note that in criminal cases, it is the defendant who controls when this form of character evidence is admissible in the first instance. Only the defendant can open the door regarding one of his/her character traits or one of the victim's character traits. If the defendant does open the door, then it is fair game for the prosecution to rebut the evidence.

When it comes to character evidence regarding good or evil, a defendant must be very careful. For example if he introduces evidence that he is a "good" person, subject to 904.03, the State is permitted to introduce evidence that he is a "bad" or "evil" person. Like wise, if a defendant introduces evidence that the victim is a "bad" person, the State can, subject to 904.03, rehabilitate with evidence that the victim is a "good" person.

904.05 sets forth the methods of proving character. Proof may be made by testimony as to reputation or testimony in the form of an opinion [ala 906.08]. Once the door is opened, on cross-examination, inquiry is allowable, subject to 904.03, into relevant specific instances of conduct. Relevancy is, of course, governed by 904.01. The two conditions precedent to relevancy are that the evidence goes to a matter of consequence in the case and that the evidence makes the matter of consequence more probable or less probable.

Furthermore, with respect to specific instances of conduct, where the character or trait of character is an essential element of a charge, claim or defense, proof may also be made of specific instances of the person's conduct. A prime example of this is when a defendant relies on self defense as his/her defense. What he/she actually knew about the character of the victim for violence vis a vis specific instances is admissible. Also, to the extent others are knowledgeable of those same instances they may be admitted via others to corroborate the testimony of the defendant.

The overriding principle with respect to character evidence for good or evil is that while it may be admitted, it is subject to a 904.03 analysis. That is, "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Whenever a party intends to introduce character evidence for good or evil, the trial court should always do a 904.04(1) analysis followed by a 904.05 analysis, followed by a 904.01 analysis and a 904.03 analysis. It is the duty of the trial court to protect the rights of the parties and to protect the record.