Character Evidence

Introduction to Character Evidence

If common sense were to be employed, it would be reasonable to say that it is proper to take the good or bad character of a party to a case into consideration in the determination of his criminal or civil liability.

However, under our law of evidence, the general rule is that the character of a party is irrelevant in both civil and criminal proceedings except as provided by the Evidence Act.

Table of Content

1. Introduction
2. Character Evidence in Civil Trials
3. The General Rule
4. Exceptions to the General Rule
5. Character Evidence in Criminal Trials
6. Evidence of Good Character
7. Evidence of Bade Character
8. Other Cases of Character Evidence
9. Evidence of Previous Conviction after Verdict
10. Plea of Autre Fois Convict/Acquit
11. Consideration of outstanding Offences
12. Method of Proving Previous Conviction

The exclusion of character evidence is predicated on its prejudicial nature. In other words, exclusion of character evidence is meant to guard against an ever-ready acceptance of the argument that the defendant or accused must have committed the civil wrong or crime charged because he is the kind of man who would do that kind of thing.

However, with regards to witness, and this include the parties when testifying, character proof is generally relevant for the purpose of impeaching his credit in cross-examination. This chapter examines the occasions of relevancy and admissibility of character evidence both in civil and criminal cases. First, what is meant by the term, character?

This is defined in section 77 as meaning reputation as distinguished from disposition and except as mentioned in the provisions of section 78 to 87, evidence may be given only of general reputation, and not of particular acts by which reputation or disposition is shown.

This is because isolated incidents offered no presumption of a man’s general character. Thus, when evidence of character of a party is admissible, it is evidence of his reputation that may be given and not of particular acts by him.

Also, when evidence of character of a party is admissible, it is evidence of his general reputation and not, his disposition which is the tendency to act, think or feel in a particular way which is admissible.

Character evidence has, therefore, been defined as regarding someone’s personality traits, evidence of a person’s moral standing in a community based on reputation or opinion.

To prove the reputation of a party, the opinion of a witness concerning the person’s character is irrelevant and ipso facto inadmissible. In the old English case of R. v. Rowton is quite illustrative. In that case, Rowton was charged with indecent assault upon a man. In his defence, he called a witness to give evidence about his good character.

The prosecution then called evidence in rebuttal. In reply to a question concerning Rowton’s character for decency and morality of conduct, the witness stated as follows:

“I know nothing of the neighborhood’s opinion because I was only a boy at school when I knew him; but my own opinion, and that of my brothers who were also pupils of his, is that, his character is that of a man capable of the grossest indecency and the most flagrant immorality”.

Rowton was convicted but his conviction was quashed on appeal to the Court for Crown Cases Reserved because the prosecution’s evidence of character had been given in the wrong form. Commenting on this judgment, Cross and Wilkins rightly noted that one way of stating the effect of the decision is that, in the law of evidence, ‘character’ usually means reputation.

When a witness is asked about a person’s character with regard to such matter as honesty and morality, it must be made plain to him that he is being asked for what he knows about that person’s reputation with regard to these matters, not for his opinion concerning that person’s reputation with regard to these matters, not for his opinion concerning that person’s disposition to act honestly or morally.

Attention must here be drawn to a very important issue which is often ignored for lack of proper understanding. This issue relates to the purposes for which character evidence is relevant and admissible.

Generally, character evidence may be employed either for purposes of impeaching the credibility of a party/witness and or for substantive purposes. When it is employed for the first purpose, the goal is to impeach the credibility and reliability of the party or witness so that the court will have little regard for his testimony.

Here, the reputation of the party/witness is not in issue, but evidence is nevertheless led to show that he is not worthy of belief.

When character evidence is employed for the second purpose, namely, substantive purpose, the aim is to prove substantive facts which are in issue. This is why section 78 provides that, in civil cases, character evidence becomes relevant when such character appears from facts otherwise relevant.

For instance, in a case of defamation, the character of the plaintiff is relevant to prove whether he is entitled to the reputation he is complaining has been tainted by the defendant’s publication.

It is necessary not only for academic but also practical reasons to always bear in mind the distinct forms or purposes of character evidence stated above. As noted by Younger:

“In all likelihood, your mastery of character evidence will reflect the extent of which you are able to keep its substantive and credibility component analytically distinct”.

Having disposed of the above introductory remarks, we shall now examine under different headings, character evidence in civil proceedings and criminal trials since the rules guiding admissibility of character evidence vary with the type of proceedings.

Character evidenc civil case

The General Rule

Section 78 of the Evidence Act provides answer to the question of relevancy or otherwise of character evidence in civil proceedings. By the provision, character evidence is generally not relevant in civil proceeding except in so far as such character appears from facts otherwise relevant.

The exclusion of character evidence in civil cases can be justified by common sense. If character evidence were to be admissible as the basis for establishing a case or disproving liability, practical problem of immense proportion is bound to occur.

For instance, how would a matter be resolved where both parties to a civil suit are equally of sound moral character or are both notorious vandals? Again, of what relevance is the character-good or bad – of the parties to an action to trespass or determination of title to land? It is for lack of relevance to the just determination of civil cases that character evidence is declared by the Act, as a general rule, to be irrelevant in civil trials.

Accordingly, a plaintiff may not lead evidence of the defendant’s character for the purposes of supporting an argument that he is the kind of man who would do a certain act.

Exceptions to the General Rule

To the general rule that character evidence is irrelevant in civil proceedings, there are exceptions also provided in section 78 of the Evidence Act.

Although, as noted by the Law Reform Commission, the circumstances under which character evidence in civil proceedings may be relevant under section 67 (now section 78) are not immediately apparent; there are a number of established cases where characters of parties to civil cases are relevant under the Act.

For instance, by sections 79 and 80, evidence of the plaintiff’s character may be given when it is in issue and when it affects either liability or measure of damages. Defamation affords a good example here.

The character of the plaintiff is in issue in all cases of defamation especially where the defendant relies on the defence of justification. If justification is pleaded, the character of the plaintiff is in issue on the question of liability. The plaintiff’s character is also relevant in order to determine the quantum of damages he may recover in defamation.

Thus, section 78 of the Act provides that in civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant.

However, the provision of section 80 of the Act must be immediately noted here. By the section, in actions for libel and slander in which the defendant does not by his defence assert the truth of the statement complained of, the defendant is not entitled in the trial to give evidence in chief with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.

It is not only in defamation that evidence of character is relevant. Evidence of plaintiff’s bad character is also relevant and admissible for purposes of mitigation of damages in actions for breach of promise of marriage. Similarly, in actions for damages based on adultery, evidence of the plaintiff’s bad character is relevant and admissible in mitigation of damages.

From what has been stated above, it seems fairly obvious that the defendant’s character is rarely in issue and, therefore, usually irrelevant. However, evidence of a defendant’s character may be relevant on some occasions. For instance, in divorce cases based on adultery, the moral character of the respondent may affect the quantum of damages against him.

Apart from the rules stated above, where a party to civil proceedings testifies in court, he may be asked question in cross-examination with a view to impeaching his credit. In other words, questions about his character understood in a broad sense as including, reputation, disposition and previous conviction can be asked.

Character evidence example

Character Proof in Criminal Trials

• Evidence of Good Character

By virtue of the provision of section 81 of the Act, in criminal proceedings, the fact that the person accused is of good character is relevant, and we may add, ipso facto, admissible.

Evidence of good character of an accused may be given either by the accused himself, or elicited from the prosecution witnesses through cross-examination, or it may also be obtained through witnesses for the defence.

The utilitarian value of evidence of good character is limited for two reasons. First, for evidence of good character to be of any probative value, it must relate to the offence charged.

Accordingly, where the accused person is standing trial for an offence involving dishonesty, the relevant evidence of good character will be on showing that he is an honest person.

Similarly, if the charge is one involving moral turpitude, evidence of good character which will be relevant is one showing the accused to be a person of good moral standing. An illustration of the foregoing is afforded by two old cases.

In R.v. Tumer, where the accused was charged with treason, it was held that evidence of his good character should not be general but limited to his character for loyalty and being peaceful.

Similarly, in R. v. Williamson, a male mid – wife charged with manslaughter was permitted to adduce evidence showing that he was a kind man who had always given skillful attention to women.

The second reason why the evidence of good character is of limited value is that if the case against the accused is clearly and strongly established against him, no amount of evidence of good character will demolish such clearly established offence. The restricted value of evidence of good character has been admirable captured by a learned author when he stated:

“If an alarm of theft is raised at a charity bazaar, and the thief slips a stolen purse into the pocket of a bishop, the Episcopal character may allay suspicion; but if a bishop should be caught in the act of ‘shoplifting’, the Episcopal character would merely appear to be unmerited.

Although of limited value, evidence of good character can, especially in doubtful cases, be of importance in strengthening the presumption of the accused innocence. It is instructive to note that whenever evidence of good character of the accused is declared relevant and admissible, any evidence given by the prosecution in rebuttal must be held also admissible.

• Evidence of Bade Character

Section 82 of the Act governs the question of relevance or otherwise of evidence of bad character of an accused. As a general rule, the section in sub-section 1 provides inter alia that:
‘Evidence of the fact that a defendant is of bad character is inadmissible in criminal proceedings’.

In sub-section 2 and 3, exceptions to this general rule are created. By the combined effect of the two sub-sections, evidence of bad character of an accused is relevant and admissible in the following three instances:

1. When the bad character of an accused person is a fact in issue;
2. When the accused person has given evidence of his good character;
3. When the accused may be asked questions to show that he is of bad character in the circumstances mentioned in paragraph c of the proviso to section 180 of the Act.

We shall examine each of these exceptions more closely, and seriatim. Before then however, it is necessary to skeletally note the following points:

First, evidence of bad character of an accused person cannot be received outside any of the aforementioned exceptions. Indeed, reception of any evidence of bad character unless where any of these exceptions applies may lead to a conviction being quashed on appeal unless other evidence exists which can sustain the conviction.

Second, in all three exceptional circumstances where evidence of bad character is relevant and admissible, evidence of previous conviction is also relevant.

Third, there is authority to the effect that where evidence of bad character is admissible, such evidence need not be confined to those types for which the accused is charged. Accordingly, if he is charged for indecent assault upon a woman, evidence of his previous convictions for offences involving dishonesty will be admissible.

The basis for this rule is that the character of the accused is indivisible and as such, there is no such thing as putting half a prisoner’s character in issue and leaving the other half. He cannot credit himself with a good character for chastity without running the risk of cross-examination concerning offences involving dishonesty.

It is however doubtful whether this decision which has been rightly criticized represents the position of the law in Nigeria. First, it is inconsistent with the rule restricting evidence of good character to the evidence relating to the charge and second, it will be a license to the reception of otherwise irrelevant facts.

Having disposed of the above, we now turn to the examination of the three exceptional circumstances where evidence of bad character is relevant and admissible.

1. Where the Bad Character of an Accused is in Issue

In all cases where the bad character of an accused is a fact in issue, the bad character of the accused is relevant and admissible.

A good example is afforded by the cases where previous convictions are an ingredient of the offence for which the accused is standing trial. For example, on a charge for being a rogue and vagabond under section 250(1) of the Criminal Code, proof of a previous conviction, for being an idle and disorderly person under section 249 is necessary to establish the offence.

In proving previous conviction, evidence of bad character of the accused is being led and this is relevant and admissible as constituting fact in issue. Similarly, under section 36 of the Act, for purposes of proving guilty knowledge in charge of receiving stolen property under section 427 of the Criminal Code, the fact that within the five years preceding the date of that charge the accused was convicted of any offence involving fraud or dishonesty may be proved.

2. Where the Accused has given Evidence of Good Character

Whenever the accused gives evidence of his good character, he is said to have put his own character in issue and accordingly, the prosecution is entitled to lead evidence in rebuttal.

It accords with common sense that if the accused has consciously, by giving evidence of his own good character, sought to create a favorable impression in the mind of the judge, his dirty past should be exhumed without any restraint.

The prosecution is, therefore, at liberty to demonstrate by evidence that the character of the accused is not such as he wants the court to believe.

It needs be emphasized that under this heading, the prosecution can only give evidence of the accused bad character in order to rebut evidence of good character. Accordingly, the prosecution cannot open with evidence-in-chief of the accused bad character.

It is also instructive to note that evidence of bad character give in rebuttal of the accused evidence of good character is not substitute for proof of the charge the accused.
Such evidence is only meant to show the court the true character of the accused.

3. Evidence of Bad Character Under Section 180(a)

The third exceptional circumstance where evidence of bad character of an accused is relevant and may be given is as provided under section 180(g) of the Act. For its aptness, the sub-section is reproduced as follows:

“A person charged and called as a witness in pursuance of this section shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless:-

• The proof that he has committed or been convicted of such offence is admissible evidence to show that he is guilty of offence wherewith he is then charged, or
• He has personally or by his legal practitioner asked questions of the witness for the prosecution with a view to establish his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, or
• He has given evidence against any other person charged with the same offence.

The above provision which is impari material with section 1(f) of the United Kingdom Evidence Act, 1898 and section 160(d) of the Repealed Act, is part and parcel of the provision relating to the competence of an accused to give evidence at his own trial which is also examined under competency and compellability.

Other Cases of Character Evidence

In concluding discussions on this topic, attention must be drawn, albeit skeletally, to other cases where in practice evidence of previous convictions and bad character is permitted to be given by the prosecution. These cases are:

• Evidence of Previous Conviction after Verdict

If a verdict of guilt is passed at the conclusion of a criminal trial, the court, before sentencing will normally inquire from the prosecution, the accused past record. This is to enable appropriate punishment to be given. In R. v. Agwuna, the West African Court of Appeal noted that:

“The only kind of previous conviction which a court is entitled to take into account when assessing sentence is one in which conviction took place before the commission of the offence for which the accused is instantly charged and convicted, the principle being that a man who already had a conviction for a similar offence before he committed the second one does not deserve to be treated with leniency.

In practice, any previous conviction is usually taken into consideration and not necessarily previous convictions for similar offence.

• Plea of Autre Fois Convict/Acquit

An accused may raise a plea that he has previously been convicted or acquitted. This, essentially, involves his giving evidence of his previous convictions and bad character.

• Consideration of outstanding Offences

If the accused is convicted on a charge, he may after conviction, admit the commission of other crimes. It is also not uncommon that an accused may be arraigned on different counts in different charges before the same court. Outstanding offences may be taken into account by the trial court in passing sentence in respect of the charge for which a conviction has been entered.

Method of Proving Previous Conviction

Where the accused does not admit previous conviction, provisions exist under the Act by which this may be proved. Where he admits his previous convictions, then proof of the same is unnecessary.

Therefore, the provisions of Sections 248, 249 and 250 dealing with proof of previous convictions are only of value where the accused does not admit his previous conviction. Since these provisions are sufficiently clear, all that is proposed to be done here is to reproduce them without amplification.

Section 248 which is a reproduction of Section 225 of the repealed Act provides as follows:

Where it is necessary to prove a conviction of a criminal offence the same may be proved:

• By the production of a certificate of conviction containing the substance and effect of the conviction only, purporting to be signed by the registrar or other officer of the court in whose custody is the record of such conviction.
• If the conviction was before a customary court, by a similar certificate signed by the clerk of court or scribe of the court in whose custody is the record of such conviction;
• By a certificate purporting to be signed by the Director of Prisons or officer in charge of the records of a prison in which the prisoner was confined giving the offence for which the prisoner was convicted, the date and the sentence.

See also: Corroboration of Evidence, Burden and Standard of Proof, Exclusion of Oral and Documentary Evidence here.