At trial, one form of evidence that may be used to defend against criminal charges is “character evidence”. Evidence of an accused person’s good character can support the conclusion that he/she is not the type of person that would commit the offence(s) alleged and therefore did not do so. It can also be used to support an accused person’s credibility.
However, leading evidence of good character is potentially risky. Generally, the prosecutor is not permitted to lead evidence of an accused person’s “bad character” (there are exceptions to this rule). However, if the character of the accused is put into issue (say, by introducing reputation evidence), the prosecutor will be permitted to lead bad character evidence.
Types of Good Character Evidence
Evidence of the good character of the accused is commonly introduced either by calling witnesses who testify to the good reputation of the accused, or when the accused person himself/herself testifies and gives information about their character. Another way to introduce evidence of good character is by leading expert psychological evidence about the accused
One way that good character evidence can be introduced is through defence witnesses who will testify about the accused person’s reputation within the community. In this case, the defence would call witnesses who know the same people that the accused knows and they are familiar with the reputation that the accused holds within that group or “community”.
The “community” doesn’t have to be the neighborhood in which the accused lives. Courts have recognized that people participate in different “communities” and that their reputations may be different in different communities. For example, a person may be known for different things among his/her business associates than among friends or neighbors.
These witnesses cannot give evidence about specific actions that demonstrate good character. They are limited to evidence about the good reputation of the accused.
Reputation evidence can support the conclusion that the accused person did not commit the crime(s) charged. The reputation should relate to the nature of the charges. For example, a person charged with a violent offence like assault could call evidence about his/her reputation for pacifism or non-violence. Similarly, a person charged with an offence of dishonesty like fraud or theft might call evidence about his/her reputation for honesty or integrity. In these examples, the person’s reputation would support the conclusion that it is less likely that they committed the offence charged.
Reputation witnesses can also be called to support the credibility of the accused should he/she choose to testify. For example, a reputation for truthfulness, honesty, or integrity can help to support the conclusion that the accused is a credible witness who is worthy of being believed.
There are, however, certain limits on the usefulness of this kind of evidence. For example, courts have found that value of good character evidence is lower when it comes to offences of a sexual nature. This applies to sexual offences involving both adults and children. The reasoning for this is that this type of misconduct is generally hidden “behind closed doors” and is not usually reflected in the accused’s reputation.
Character Evidence Led By the Accused
In some cases, an accused who testifies may give character evidence himself/herself. Unlike reputation witnesses discussed above, an accused person who testifies is allowed to give evidence about specific acts that demonstrate good character. They are also allowed to give opinions about their character (e.g. “I would never do that kind of thing”). An accused person may also give evidence that they have a particular character trait (e.g. “I’m an honest person”).
Expert Opinion Evidence
Evidence of “good character” can also be introduced through an expert. The rules relating to the introduction and use of expert evidence are complicated. Further, there is specific case law that relates to the use of expert evidence relating to the accused’s character. We will therefore not deal with this issue at length.
Generally speaking, an expert psychiatrist could testify and give an opinion that whoever committed the offence has a specific character or behavioral trait and that the accused person does not have this trait. The suggested conclusion would be that the accused is not the person who committed the crime.
The Risks of Leading Good Character Evidence
Leading evidence of good character can be risky. If this kind of evidence is introduced, the accused will be considered to have “put his character in issue”. The prosecutor will then be permitted to rebut by leading evidence that the accused is a person of bad character – something they are normally not permitted to do. (There are situations where certain types of bad character evidence can be led even if the accused has not led good character evidence.)
Determining when exactly an accused person has put his/her character “in issue” can be tricky. Sometimes it is obvious that character has been put in issue (say, when a reputation witness is called). Other times it is hard to tell. There is a significant amount of case law on the subject.
There are a number of ways that the prosecution can call evidence of bad character to rebut the accused’s good character evidence. For example, the prosecution can call reputation evidence that contradicts the reputation evidence called by the accused, or shows the accused to be a person of bad character. The prosecution can cross-examine on good character evidence led by defence witnesses. Further, if the accused has a prior criminal record, the prosecution will be able to ask questions not just about the fact that prior convictions occurred (something normally allowed under section 12 of the Canada Evidence Act), but also about the details of those convictions. The prosecution may also call evidence that the accused committed acts in the past that are similar to the charges (known as “similar act evidence”).
Evidence of good character can be helpful to supporting the credibility of the accused or arguing that they did not commit the offences charged. However, leading this kind of evidence opens the door for the Crown to introduce evidence of bad character. The risks and benefits of leading character evidence must be carefully weighed. It is best to rely on the advice of a lawyer to determine whether leading character evidence is appropriate in a given case.