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F 2.40 n1 Character Evidence: Right to Expert Testimony.
The defense has the right to present expert testimony that the defendant is not deviant or abnormal. (People v. Stoll (89) 49 C3d 1136, 1152-53 [265 CR 111]; see also People v. Ruiz (90) 222 CA3d 1241, 1243-46 [272 CR 368].)
When the defendant’s expert character testimony is central to the defendant’s claim of innocence, it may be argued that exclusion of the evidence violates the defendant’s federal constitutional rights to due process, compulsory process and confrontation under the 6th and 14th Amendments of the federal constitution. (See e.g., Crane v. Kentucky (86) 476 US 683, 690 [90 LEd2d 636; 106 SCt 2142]; Chambers v. Mississippi (73) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; People v. Roberts (92) 2 C4th 271, 302 [6 CR 276].) [Additional briefing and an unpublished opinion in People v. Vasquez UNPUBLISHED (8/18/95, C016903) is available to FORECITE subscribers on this issue. See Brief Bank # B-674and ask for Opinion Bank # O-197.]
[Research Note: See FORECITE BIBLIO 2.40 – 2.43]
F 2.40 n2 Admission Of Irrelevant Character Evidence Violates Federal Due Process.
McKinney v. Rees (9th Cir 1993) 993 F2d 1378, 1380-82, held that admission of emotionally charged character evidence to show propensity which is irrelevant to any issues in the trial violates the due process clause of the Federal Constitution (14th Amendment) and provides the basis for a grant of relief on federal habeas. (See also Henry v. Estelle VACATED 52 F3d 809 (9th Cir. 1993) 993 F2d 1423, 1427-28 [evidence of remote uncharged conduct of child molest by defendant violates due process].)
[Research Note: See FORECITE BIBLIO 2.40 – 2.43]
F 2.40 n3 Character Evidence: Good Character Evidence May Not Be Rebutted With Prior Convictions.
People v. Felix (99) 70 CA4th 426, 432 [82 CR2d 701] held that the California Constitution’s Truth in Evidence clause (Cal. Const., art. I, § 28) did not abrogate the Evidence Code’s foundational criteria for the admission of character evidence (EC 1101, EC 1102). EC 1101(a) generally excludes evidence of character or a trait of character to prove a person’s conduct on a specified occasion. EC 1102 creates an exception in criminal cases for evidence “in the form of an opinion or … reputation,” but not specific instances of conduct. Therefore, it is error to admit prior convictions in rebuttal of good character evidence as they constitute evidence of a specific act. (Felix, 70 CA4th at 432.)
F 2.40 n4 Character Evidence: The Defense Should Be Permitted To Present Expert And Lay Opinion Testimony That The Defendant Does Not Have The Character Of A Sexual Assailant.
See Article Bank # A-95 for the article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.
F 2.40 n5 Reputation vs. Character.
When a witness testifies to a defendant’s good reputation, the prosecutor is entitled to ask in good faith if the witness has heard of misconduct by the defendant. (People v. Ramos (97) 15 C4th 1133, 1173; see People v. Wagner(75) 13 C3d 612, 619].)
However, when a witness offers an opinion of a defendant’s good character, it is often based on personal knowledge as well as reputation. (People v. Hurd (70) 5 CA3d 865, 880.) This opens the door for the prosecutor to offer rebuttal evidence of defendant’s character. (EC1102(b).) Character evidence includes opinions, reputation, and specific instances of the person’s conduct. (EC 1100.) The prosecutor can test the witness’s opinion by asking about his or her knowledge of the defendant’s misconduct (People v. Clair (92) 2 C4th 629, 682-683), even if the witness professes ignorance. (People v. Hempstead (83) 148 CA3d 949, 954.)