EVIDENCE OF CHARACTER

CONTENTS

1.0 Introduction

2.0 Objectives

• Main Contents
• Definition of Terms
• Character of Witness
• What Constitutes Evidence of Bad Character
• When Character Evidence Becomes Relevant
• Character Evidence in Civil Proceedings
• Character Evidence in Criminal Proceedings

5.0 Conclusion

5.0 Summary

6.0 Tutor Marked Assignment

7.0 References/Further Readings

 INTRODUCTION

According to the Black’s Law Dictionary 5^th edition, Character is the aggregate of the moral qualities which belong to and distinguish an individual; the general result of the one’s distinguishing attributes. It describes it as that moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him. Blacks assert that ‘’Character’’ as the moral qualities of a person is the qualities the person possessed as against ‘’reputation’’ which is what others believe one to possess. The former is personal and real while the latter is external and based on other people’s knowledge and assessment. More often time when ‘’character’’ is used in relation to the law of evidence, it might be signifying ‘’reputation’’ which is what the people tends to know about the person. Character in relation to giving evidence could either be bad or good.

The evidence of good character of an accused person or of a witness is admissible in evidence. It points to the direction that the allegation against him is less likely to be true. Conversely, the evidence of bad character or of bad reputation is inadmissible in both civil and criminal proceedings, except where a statute specifically allows it. In this unit, you shall learn about character evidence generally, what character evidence is and the exceptional circumstances when it becomes relevant and admissible.

 OBJECTIVES

This unit is to project to the student a full and proper understanding of the term “Character Evidence”. It will also aid the students to identify when it is likely to be admitted or rejected in evidence. It further examines the Evidence of good and bad character and how such can be relevant.

MAIN CONTENT

Definition of Terms

Literally, ‘character’ signifies a reputation and a disposition. Section 77 of the Evidence Act 2011 has defined the concept of the word “Character” in relation to the Law of Evidence. It is defines it as “reputation” as distinguished from “disposition”.-

(b) Character evidence connotes evidence regarding someone’s personality traits; evidence of a person’s moral standing in a community based on reputation or opinion. It refers to one’s reputation – the esteem or otherwise, in which a person is held; the conviction based upon the person’s behaviour.

• Character Evidence

According to the Black’s Law Dictionary, character evidence refers to the evidence of a person’s moral standing in community based on reputation. The admissibility of Character evidence in Nigeria Legal practise is set out under the sections 77-82 of the Evidence Act, 2011.

• Character Distinguished
• Reputation and Disposition: A reputation must be distinguished from a disposition. Disposition according to Oxford Advanced Learner’s Dictionary, is a person’s natural qualities of mind and character. It is the natural way of behaviour towards others. The Black’s Law Dictionary, 5^th Edition in consideration of it with respect to mental state defines it as an attitude, prevailing tendency, or inclination. One may be of an evil disposition and yet be of good reputation. The converse is equally true
• Character and Conduct

 

You need also to distinguish character evidence from evidence of conduct or of behaviour. Conduct can be defined in relation to one’s action. According to Black’s Law Dictionary 5^th edition, it means an action or omission and its accompanying state of mind, or where relevant a series of acts and omission. Thus, in relation to character, conduct will be the action or inaction of an individual before the present fact.

Character evidence will be admissible for example evidence of previous convictions which are related in substance to the offence charged- Section 82 (4) (5 ). It applies in both civil and criminal proceedings (Evidence Act 2011, Sections 78-82).

• Character evidence and similar facts

Similar facts evidence is defined in section 12 of the Evidence Act, which provides as follows:

When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention or to rebut any defence that may otherwise be  open to the defendant, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

It has two connotations.

(a) Facts having general resemblance and

(b) Facts having particular resemblance

• Facts having general resemblance. Illustration:
  • Fact situation one: A Stole, B murdered, C burgled. There is a general resemblance; each is a criminal; they are bad men or women

• Fact situation two: ‘C’ is charged with stealing; three years earlier, he committed house breaking. Here is a similar fact evidence showing in each case that A is a criminal.

• Facts having particular resemblance Illustration:
  • Fact situation three: X is charged with obtaining N100,000 from Z by false pretence, that the ring is made of gold; some six months earlier, he had obtained N50,000 from Y by the same misrepresentation. Here also is a similar facts evidence showing that X is a bad man and a criminal whose particular modus operandi is obtaining money by false pretence

Facts situations one and two show general resemblance. They are irrelevant, not admissible in evidence, against A or C. Fact situation three is of a particular resemblance – distinctive modus operandi – and is admissible against X.

It may be submitted that evidence of general resemblance or general evidence system is admissible only if apart from general resemblance, the Evidence Act allows it. But those evidence which shows particular resemblance such that they fix the accused as the actor in each fact situation is relevant and admissible.

The purpose of this type of evidence system (evidence of similar fact) is to show that the accused is to be guilty of the offence currently charged by simply showing that he or she had been guilty of other misconduct than the one primarily charged.

You would have observed by now that similar facts evidence and an accused’s bad character reinforce each other or support the allegation made against the accused. Hence, evidence of bad character, which falls within the scope of similar facts evidence is relevant and admissible. Whenever evidence of bad character is relevant, evidence of previous conviction is also relevant. However, the general principle remains that:

The evidence of character of either party to a judicial proceeding is irrelevant and inadmissible and in a criminal proceeding the evidence of bad character (reputation) of the accused, or his previous conviction or previous acquittal is also irrelevant and inadmissible unless the Evidence Act or other statute so permits.

In this regard admissibility of evidence system in a criminal trial would be determined by asking, in each case whether the probative value of each evidence outweighs the prejudicial effect: DPP V P (1991).

In civil proceedings, such evidence is admissible wherever it is relevant to determine the matter in issue provided it would not be oppressive or unfair to the other side to do so. See Mood Music Publishing Co Ltd v De Walfe Publishing Ltd (1976).

• Character of the Witnesses

The character of a witness is always relevant to his or her credit to show that he or she is a person of good character and worthy to be believed. The evidence of a witness’s character becomes relevant if he or she:

• denies his or her previous conviction
• has made inconsistent statements
• denies bias in favour of one party
• Where the reliability or credibility of a previous witness (e.g. medical evidence of abnormality of mind) may affect reliability of the witness’s testimony

The character of a prosecutrix may be impeached in sexual offences, thus in a charge of Rape and similar offences, a party may adduce evidence of her reputation to show that she is a common prostitute.

The prosecutrix may be cross-examined as to acts of immorality with men, other than the accused, for purpose of impeaching her credit in such a case. But her denial is final and may not be contradicted any further.

• Evidence of previous sexual relation with the accused during cross-examination may be received if “consent” is in issue

However, such cross examination for purpose of establishing consent is not to be regarded as an imputation on her character as to put in issue the character of the accused.

The prosecution may attack the character of a defence witness and such attack may go beyond contracting the evidence of his or her good character which the witness has given.

• What Constitutes Evidence of Bad Character

The Evidence Act, section 82, provides instances where bad character e.g. of previous Conviction will be admissible. You may ask, what is the meaning of previous conviction in this context?

Look at the following cases.

1. Stirland v DPP (1944) AC 315 : Here the court expressed the view that the word “charged” in the sense it bears in the statute means “previously being brought before a criminal Court” not just being suspected or questioned
2. R v Shrimptom: S was charged with larceny (theft), His character became an issue, Prosecution gave evidence of previous conviction. The court said that if the previous conviction had been for rape, it would not have been admissible because it would have been prejudicial
3. R v Winifield (1939): W was charged with indecent assault. The court admitted evidence of previous conviction for dishonesty. The court added that there is no such thing as putting half a prisoner’s character in issue and leaving the other one out
   • When a Character Evidence becomes Relevant

What matters is not an individual opinion of the person; It is the opinion of the community.

X, a school teacher is accused of sexual harassment. Police investigates and charges him with indecent assault. The defence testifies as to the teacher’s good behaviour. The prosecution calls a witness in rebuttal in an answer to the accused’s moral standard, saying:

“I know nothing of the neighbourhood’s opinion because I was only a boy at school when I know him but my own opinion and that of my brothers who were his principals is that his character is that of a man capable of the grossest indecency and the most flagrant immorality”. R v Rowton (1865)

A witness can only speak of the accused’s reputation, not of rumour, or suspicions which cannot be proved.

In a situation where a rumour affects a person’s reputation, Admissibility or non- admissibility may well depend on party’s pleadings.

• Grounds for relevancy of Character Evidence

Evidence of character may be admitted in the following circumstances:

1. where the question of character becomes relevant
2. as evidence of similar facts to show system or design

• to negative a plea of accident

1. to know motive or intention
2. if an accused has adduced evidence of his or her own good character
3. Where statute specifically allows evidence of accused’s bad character or previous conviction(s).

Some of these situations apply to civil proceedings while others apply to criminal matters. Some of them also apply in both cases.

SELF ASSESSMENT EXERCISE: Explain what is meant by bad character

• Evidence of Character in Civil Proceedings

In civil cases, evidence of the character of a party is irrelevant. It becomes admissible if it is otherwise relevant, as in the following examples

1. Where the character of the claimant/Plaintiff is a fact in issue: See Ingram v Ingram (1956). This was a case of divorce based on adultery. The husband, who was a senior military officer was allowed to give evidence of treason against his spouse in proof of the fact that his spouse was guilty of weighty misconduct which is a constituent of cruelty.
2. Where the character of the Plaintiff is relevant in assessing the quantum of damages e.g.
   1. Proceeding for breach of promise of marriage
3. Petition for divorce founded on adultery with his or her spouse

• In mitigation of damages in action of defamation Evidence of conviction is conclusive proof that the subject committed the offence in an action for libel or slander in which the question whether a person did or did not commit a criminal offence is relevant

1. Evidence of bad character (i.e. general Reputation) of the Plaintiff is relevant in an action for defamation in which justification is pleaded and also to mitigate damages. In this regard the defence must first deliver particulars of the proposed evidence seven days before the trial or with leave of the judge
2. In cross examination of witness as to credit: Evidence of previous conviction or of bad character of a party may be relevant where the party testifies on oath at the witness box and is being cross-examined as to credit. (See Evidence Act 2011 Sections 210- 213,179, 224 and 228).

• Character of the Defendant

Normally, the fact that a defendant in a civil action is an ex-convict would not be admissible for the Plaintiff/Complainant. [See the case of HOLLINGTON V HEWTHORN AND CO LTD (1943) KB 587].

However, the moral character of the defendant is relevant, for example:

1. to allegations of adultery in divorce proceedings
2. in an action for breach of promise of marriage

See the case of Din v African Newspaper Ltd (1990) 3 NWLR 392 . This was a case of libel and evidence of bad character was held admissible since the parties have, in pleadings  joined issues on the good character of the Plaintiff.

• Character Evidence in Criminal Cases

The accused occupies dual positions: He is a party (the accused). He is a competent witness for the defence. Both roles have different bearing on character evidence.

• Accused’s Good Character

Common law and the Law of Evidence allow an accused to give evidence of his or her good character. This may be elicited either in  evidence  on  grounds  of  humanity,  in  examination –in-chief of a character witness or by the accused himself or in cross- examination of the witness by the prosecution. Evidence of opinions of specific person or evidence of specific acts by the accused is outside the  scope  of  character  evidence  (Section 8, Evidence Act, 2011).

When the evidence of good character may be admissible? Evidence of good character may be admissible if:

1. it is relevant to the offence charged
2. it refers to a date proximate to the charge

• it is general, not relating to specific instances

In Stirland v DPP (1944) Accused was charged for forgery, he gave evidence of good character and official record and called a witness to depose that he had never been charged before. In rebuttal, the prosecutor sought to cross examine as to whether the employer had suspected or questioned the accused about a suspected forgery. It was Held inadmissible.

In Haruna and others v Police (1967) NRNLR 37, the applicant was charged with abatement of robbery. He called as a witness, a bank manager who said:

“I know the accused’s financial background. He is financially sound. Since I have known the accused I don’t remember him getting involved in any trouble”

This was Held admissible as evidence of good character.

The character evidence must be of the specific type impeached. Thus if the offence involves dishonesty, or immorality, the question in issue becomes his or her character as to honesty or morality; character in other respects are immaterial.

Evidence of good character is a double edged weapon as it entitles the prosecution also to advance evidence of bad character, if any.

It has two important limbs

• Its relevance to credibility
• Its relevance to the question whether the accused/defendant was likely to have behaved as alleged by the

Where an accused faces multiple charges, pleads guilty to some and not guilty to others, he ceases to be of good character any longer.

 Evidence of bad character

Evidence of bad character is irrelevant. See Section 81, Evidence Act, 2011). Such evidence cannot be adduced for the following reasons:

1. It is irrelevant party
2. It may unduly harass the party
3. c) It is prejudicial
4. It tends to rake up the whole of one’s career which one would not be prepared to defend without sufficient notice

There are, however, the following exceptions to the general rule that evidence of bad character, convictions and acquittals of the accused are inadmissible:

1. Where the accused puts his or her character in issue by:
2. Introducing evidence of his or her good character or
3. Attacking the character of the prosecutor or his witness

For this purpose evidence of previous conviction is evidence of general reputation. Such imputation may be by personal testimony, or through a witness or advocate.

1. Where statute permits, examples are:
2. Evidence Act, section 180
3. Criminal code 249-50 and 427 and,

• Penal Code section 40. Some statutes have provisions for evidence of bad character e.g. official secret Act.

1. Similar facts such as conduct in previous transactions. The purpose should be

• to negate a plea of accident,
• to show evidence system
• to show motive

1. Certain crimes, as defined in the statute creating them, allow character evidence. Example is loitering with intent to commit a felony
2. Character evidence in form of previous conviction may be allowed:

• to establish knowledge in case of receiving stolen property (evidence of Scienter).
• when the penalty is to be enhanced for subsequent offences as in the case of persistent

1. Upon a plea of autrefois convict or autrefois
2. After verdict and in response to “Alloquitus” for purpose of determining appropriate sanction.

Note that an emphatic denial however strong is not a character impeachment and would not justify a rebuttal based on bad character or previous conviction. If the accused impeaches the character of the prosecution or his or her witness from the dock, he is protected. But when the accused makes such imputations and elects to go and goes into the witness box, he exposes him or herself to cross examination with regard to his or her bad character or previous conviction.

The judge has the discretion to disallow a cross-examination as to accused’s bad character or his or her previous conviction, where the prejudicial effect outweighs the probative value.

Where an accused has given evidence of his or her own good character, it is always open to the prosecution to give evidence in rebuttal but Lord Hershell’s dictum is instructive. He states:

“it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from the criminal conduct or character to have committed the offence for which he is being tried.

“On the other hand, the mere fact than the evidence adduced tends to show the  commission of other crime does not render it inadmissible, if it be relevant to an issue before the (court) and it may be so relevant if it bears upon the question whether the act alleged to constitute the crime charged in the indictment was designed or accidental or to rebut a defence, which would otherwise be open to the defence” (MAKIN V. ATTORNEY- GENERAL FOR WAR SOUTH WALES (1894) AC 59 PC).

Evidence of bad reputation or a bad disposition is to be excluded only if it shows nothing more.

See the case of R V SIMS (1946) 1 KB 531. Here the Accused was charged with 10 counts for sodomy and gross indecency with A, C, H and E and with three boys and tried together. Considering sodomy as a crime of special category, a repetition of the acts with a specific feature connecting the accused with the crime and the interest of justice, the court held that the evidence of such acts was admissible in each case to show the nature of the act done by the accused.

Series of facts with same characteristics are unlikely to be produced by accident or inadvertence. After all, human nature has a propensity to repetition and as series of acts are likely to bear the same characteristics, while therefore one witness as to one act might be mistaken in identifying the accused, it is unlikely that a number of witnesses identifying the same person in relation to a series of acts with the self-same characteristics would all be mistaken.

In HARRIS v DPP (1952) AC 694. Here the Appellant was at all material times on duty as a police constable in a market. He was indicted on 8 counts each of which alleged a breaking into the same office in the market and stealing between May and July. The evidence showed that most of the gates of the market were closed and on each occasion the thief had entered the office by the same method and stolen part of the money, the whole of which he could have stolen. Apart from the evidence of opportunity, there was no evidence to connect the appellant with 7 of the counts. With regard to the 8th count, the evidence shows that a burglar alarm had been planted on the premises unknown to the appellant, who was as usual, on duty in the market at the time.

Immediately after the alarm had sounded, some detectives, who had been lying in wait ran to the market and saw the appellant standing near the office. Although he was acquainted with the detectives, he nevertheless disappeared from sight for a short period long enough for him to hide the money, where it was later found.

The trial court acquitted him of the first 7 counts but convicted him on the last, which conviction was upheld by the court of criminal appeal. On further appeal, the House of Lords quashed the conviction on the ground that irrelevant evidence in the nature of the evidence of the earlier theft was wrongly admitted.

In BOARDMEN v DPP (1974) 3 ALL E R 887, the House of Lord held that in exceptional cases, evidence that an accused had been guilty of other offences will be admissible, if it shows that those other offences have with the offence in hand, common features of such an unusual nature and striking similarity that it would be an affront to common sense to assert that the similarity was explicable on the basis of coincidence.

The approach by Lord Goddard, CJ deserves mention. He said, (R v SIMS 1946 as above)

“If one starts with the assumption that all evidence tending to show a disposition towards a particular crime must be excluded unless justified, then the justification of evidence of this kind is that it tends to rebut a defence otherwise open to the accused. But if one starts with the general proposition that all evidence that is logically probative is admissible unless excluded, then evidence of this kind does not have to seek a justification but is admissible irrespective of the issues raised by the defence and we think is the correct view’’.

The Judicial Committee of the Privy Council criticized this approach saying that the judge ought to consider whether such evidence proposed to be adduced:

Is sufficient and substantial having regard to the purpose to which it is professedly directed to make it desirable in the interest of justice that it should be admitted.

In so far as the purpose is concerned, it can, in the circumstance of the case, have only trifling weight, the judge will be right to reject it; … but cases may occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge (per Lord Parque).

The judge has the discretion to admit the type of evidence if he is satisfied that:

• Its probative force in relation to an issues in the trial outweighs its prejudicial effect and
• There was no possibility of collaboration between the witnesses

SELF ASSESSMENT EXERCISE

What is the principle of evidence enunciated in Makin’s case

 CONCLUSION

Literarily, character refers to disposition and reputation. In Law, it signifies reputation, not particular facts or opinion.

In Civil cases, evidence of character of either party to a judicial proceeding is generally inadmissible (Sections 78 and 81 of the Evidence Act, 2011). The reason is that it is not only irrelevant but also would unduly harass and prejudice the party. It has the effect of raking up the whole of his/her career. The character of the complainant/Plaintiff in a civil suit is irrelevant and inadmissible except where his/her character is in issue or where it is relevant to assessing damages. (BUTTERWORTH V BUTTERWORTH (1920) P 126) or in cases of rape and indecent assault (evidence Act section 233), [SELVEY V DPP (1968) 2 ALL ER 497]. A defendant’s’ character is hardly in issue, except perhaps in divorce proceedings (Ingram v Ingram, 1956) or in an action for breach of promise of marriage [HOLLINGTON V HEWTHORN & CO LTD (1943) KB 587]. In relation to an accused, evidence of good character can, on grounds of humanity, be given in person, or by the prosecution/defence witness. Evidence of bad character cannot be adduced before verdict. To this general rule there are exceptions.

Examples are: where the accused puts his/her character in issue, evidence system, in proof of previous conviction or where statute so provides. See Evidence Act, Section 8, 81, 180, 228, Criminal Code sections 249- 250, 427, Penal Code section 405. An accused’s character is adduced in cross examination when he goes to the witness box. Character evidence may be given after verdict or in a plea of autrefois verdict or acquit. The character of witnesses is impeachable as to his/her credit in cross-examination (R V ROWTON [1865] LE & CA 520), SCOTT V SAMPSON (1882) 8 QBD 491. In criminal proceedings the general rule is that evidence of bad character (reputation) previous conviction or acquittals of the accused is irrelevant and inadmissible.

 SUMMARY

In this unit, you learnt about character evidence and examined Sections 77-82 and 180 of  the Evidence Act, 2011. The expression was defined or explained with illustrations. You also learnt of the circumstances under which good or bad character evidence of the parties and witnesses (as the case may be) may be relevant and admissible and when not. What constitutes evidence of bad character was examined. It is not individual opinion; it is the opinion of the community. Character evidence in criminal and civil proceedings were dealt with separately. In civil matters, evidence of character is admissible if it is relevant in order to determine the matter in issue provided it is not oppressive or unfair to the other party. In criminal trials, the judge has a discretion to weigh its probative worth with its improper prejudicial effect. The important principle enunciated in Makin’s case cannot be sufficiently stressed. The type of bad character evidence to admit or disallow is at the discretion of the judge.

TUTOR MARKED ASSIGNMENT

Okoro is charged with the offence of Rape. He has previously be convicted of unlawful possession of Marijuana, but that was his only conviction.

Okoro has approached you to defend him. Summarize the application about his character that you should make to the judge

REFERENCES/FURTHER READINGS

1. Nwadialo, F (1999) 2nd ed. Modern Nigerian Law of Evidence, University of Lagos Press.
2. Evidence Act, 2011
3. Aguda T. (2007) The Law of Evidence, Spectrum Law Series,