Jury Trial Issues -- The Parameters of Character and Other Acts Evidence

By John DiMotto

In criminal jury trials, it is the job of the jury to determine if the state has presented "sufficient evidence" to overcome the defendant's presumption of innocence. "Sufficient evidence" is that amount/degree of evidence with respect to each element of the offense charged whereby the jury can say, beyond a reasonable doubt, that the defendant is guilty. Ordinarily, the evidence addresses two questions: was the crime committed and did the defendant commit the crime. It sounds simple, but that is far from the truth.

In many trials, evidence unrelated to the commission of the crime charged is offered. This evidence usually falls within two categories: character and other acts. Sometimes it is admissible; sometimes it is not. One thing is sure, the trial judge must be on his/her toes in terms of what to admit and what not to admit in order to protect the record.

Under the rules of evidence "general character" evidence [904.04(1)] is normally not admissible to prove that a person acted in conformity therewith on a particular occasion. This is because guilt should be determined based on "crime related" conduct. There is, of course, an exception. Under 904.04(1)(a), evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same is admissible. The defendant is in control of what character evidence may come in since the State may only admit character evidence to rebut character evidence offered in the first instance by the defendant. As a practical matter, a defendant rarely puts in character evidence since it opens the door for the State to put in "negative" character evidence. (Usually "negative" character evidence far exceeds "good" character evidence.) However, while character evidence is ordinarily not admissible, this does not preclude the introduction of "other acts" evidence when offered for a legitimate purpose.

"Other acts" evidence [904.04(2)] may be admissible if it is offered for a purpose other than character. By statute, it may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. By case law, it may be introduce to prove context or for background. However, while it may fit into one of those categories, it must be relevant in the context of the case under 904.01 and, most importantly, under 904.03, the probative value of the other acts evidence must not be outweighed by unfair prejudice. It is the trial court that is the gatekeeper of other acts evidence.

Over the past twenty years, the introduction of other acts evidence has grown by leaps and bounds. There are some who say it is becoming more the rule, rather than the exception. I disagree with that assessment. I believe judges are careful when it comes to deciding whether to admit other acts evidence.

I am actively engaged in judicial education in Wisconsin. Marquette University Law School Professor Daniel Blinka, one of the most foremost evidence experts in Wisconsin, and I have taught on the subject of character and other acts evidence at numerous evidence workshops. Wisconsin judges understand that it is incumbent on the trial judge to undertake a careful "Sullivan" analysis (State v. Sullivan) and make a good record. If the proponent can meet its burden under 904.04(2), 904.01 and 904.03 then the evidence will be admitted with a strong cautionary instruction. However, if not, then the evidence is barred.

In the final analysis, the burden is on the trial judge to enforce the rules of evidence to ensure that a fair trial results.