Conn. R. Evid. 4-4

As amended through April 25, 2023

Section 4-4 - Character Evidence Not Admissible To Prove Conduct; Exceptions; Methods of Proof; Cross-Examination of a Character Witness

(a)Character evidence generally. Evidence of a trait of character of a person is inadmissible for the purpose of proving that the person acted in conformity with the character trait on a particular occasion, except that the following is admissible:

(1) Character of the accused. Evidence of a specific trait of character of the accused relevant to an element of the crime charged offered by an accused, or by the prosecution to rebut such evidence introduced by the accused.

(2) Character of the victim in a homicide or criminal assault case. Evidence offered by an accused in a homicide or criminal assault case, after laying a foundation that the accused acted in self-defense, of the violent character of the victim to prove that the victim was the aggressor, or by the prosecution to rebut such evidence introduced by the accused.

(3) Character of a witness for truthfulness or untruthfulness. Evidence of the character of a witness for truthfulness or untruthfulness to impeach or support the credibility of the witness.

(4) Character of a person to support a third-party culpability defense.

(b)Methods of proof. In all cases in which evidence of a trait of character of a person is admissible to prove that the person acted in conformity with the character trait, proof may be made by testimony as to reputation or in the form of an opinion. In cases in which the accused in a homicide or criminal assault case may introduce evidence of the violent character of the victim, the victim's character may also be proved by evidence of the victim's conviction of a crime of violence.

(c)Specific instances of conduct on crossexamination of a character witness. A character witness may be asked, in good faith, on crossexamination about specific instances of conduct relevant to the trait of character to which the witness testified to test the basis of the witness' opinion.

Conn. Code. Evid. 4-4

Amended Dec. 14, 2017, to take effect 2/1/2018.

COMMENTARY

(a) Character evidence generally.

Subsection (a) adopts the well established principle that evidence of a trait of character generally is inadmissible to show conforming conduct. See, e.g., Berry v. Loiseau, 223 Conn. 786, 805, 614 A.2d 414 (1992) (civil cases); State v. Moye, 177 Conn. 487, 500, 418 A.2d 870, vacated on other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129 (1979) (criminal cases, character traits of defendant); State v. Miranda, 176 Conn. 107, 109, 405 A.2d 622 (1978) (criminal cases, character traits of victim).

Subsection (a) enumerates four exceptions to the general rule. Subdivision (1) restates the rule from cases such as State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). The language in subdivision (1), "relevant to an element of the crime charged,'' reflects a prerequisite to the introduction of character traits evidence recognized at common law. E.g., State v. Blake, 157 Conn. 99, 103-104, 249 A.2d 232 (1968); State v. Campbell, 93 Conn. 3, 10, 104 A. 653 (1918).

Subdivision (2) restates the rule announced in State v. Miranda, supra, 176 Conn. 109-11, and affirmed in its progeny. See, e.g., State v. Smith, 222 Conn. 1, 17, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992); State v. Gooch, 186 Conn. 17, 21, 438 A.2d 867 (1982). Subdivision (2) limits the admissibility of evidence of the victim's violent character to homicide and assault prosecutions in accordance with Connecticut law. E.g., State v. Carter, 228 Conn. 412, 422-23, 636 A.2d 821 (1994) (homicide cases), overruled on other grounds by Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 313, 852 A.2d 703 (2004); State v. Webley, 17 Conn. App. 200, 206, 551 A.2d 428 (1988) (criminal assault cases); see also State v. Gooch, supra, 21 (assuming without deciding that evidence of victim's violent character is admissible in assault prosecutions to prove victim was aggressor).

Subdivision (2) does not address the admissibility of evidence of the victim's violent character offered to prove the accused's state of mind, where the accused's knowledge of the victim's violent character would be necessary. See State v. Smith, supra, 222 Conn. 17; State v. Padula, 106 Conn. 454, 456-57, 138 A. 456 (1927). The admissibility of such evidence is left to common-law development.

Subdivision (3) authorizes the court to admit evidence of a witness' character for untruthfulness or truthfulness to attack or support that witness' credibility. See, e.g., State v. George, 194 Conn. 361, 368, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). Section 6-6 addresses the admissibility of such evidence and the appropriate methods of proof.

Subdivision (4) concerns proof of third party culpability. See State v. Hedge, 297 Conn. 621, 648, 1 A.3d 1051 (2010) (once third party evidence is allowed, evidence introduced by accused could include evidence of third person's character, past criminal convictions or other prior bad acts).

Subsection (a) does not preclude the admissibility of character evidence when a person's character is directly in issue as an element to a charge, claim or defense. See, e.g., Smith v. Hall, 69 Conn. 651, 665, 38 A. 386 (1897). When a person's character or trait of character constitutes an essential element to a charge, claim or defense, Section 4-5(c) authorizes proof by evidence of specific instances of conduct.

Character traits evidence admissible under subsection (a) nevertheless is subject to the relevancy standards and balancing test set forth in Sections 4-1 and 4-3, respectively. See State v. Martin, supra, 170 Conn. 165-66.

(b) Methods of proof.

Subsection (b) adopts the recognized methods of proving evidence of a trait of character. E.g., State v. Martin, supra, 170 Conn. 163; State v. Blake, supra, 157 Conn. 104-105. Generally, neither the accused nor the prosecution may prove a character trait by introducing evidence of specific instances of conduct. State v. Gooch, supra, 186 Conn. 21; State v. Miranda, supra, 176 Conn. 112. However, subsection (b) must be read in conjunction with subsection (c), which authorizes, during cross-examination of a character witness, the introduction of specific instances of conduct relevant to the character trait to which the witness testified in order to test the basis of the witness' opinion. See State v. McGraw, 204 Conn. 441, 446-47, 528 A.2d 821 (1987); State v. DeAngelis, 200 Conn. 224, 236-37, 511 A.2d 310 (1986).

Notwithstanding the general exclusion of evidence of specific instances of conduct to prove a person's trait of character, subsection (b) sets forth one narrow exception recognized in State v. Miranda, supra, 176 Conn. 113-14, and its progeny. See State v. Webley, supra, 17 Conn. App. 206 (criminal assault cases). The convictions that form the basis of the evidence introduced under this exception must be convictions for violent acts. State v. Miranda, supra, 114. Evidence of violent acts not having resulted in conviction is not admissible. State v. Smith, supra, 222 Conn. 18.

(c) Specific instances of conduct on cross-examination of a character witness.

Subsection (c) is based on the rule set forth in State v. Martin, supra, 170 Conn. 165, which permits the cross-examiner to ask a character witness about relevant instances of conduct to explore the basis of the character witness' direct examination testimony. Accord State v. DeAngelis, supra, 200 Conn. 236-37. The conduct inquired into on cross-examination must relate to the trait that formed the subject of the character witness' testimony on direct. State v. Turcio, 178 Conn. 116, 127, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); State v. Martin, supra, 165-66. Moreover, inquiries must be undertaken in good faith.

A court, in its discretion, may limit or proscribe such inquiries where the probative value of the specific instance evidence is outweighed by unfair prejudice or other competing concerns. State v. Turcio, supra, 178 Conn. 128; see Section 4-3.

Where the term "victim'' is used in this section and elsewhere in the Code, the term includes an alleged victim in those circumstances in which a person's status as a victim is subject to proof.