By Jedidiah McKeehan
Occasionally when I meet with clients and we are discussing our upcoming trial, I will run through with them who we want to call as witnesses at trial. When they mention someone, I will ask them, “What are they going to testify about?” Sometimes they will say, “Well, they are going to be a character witness.”
Then I have to explain to them that character witnesses are not really a thing in trials. Only in very rare circumstances do witnesses get to simply testify only about someone’s character.
Typically, to testify during a case, witnesses will have to have actual knowledge about the facts of a case. However, let’s discuss the limited circumstances when character witnesses may actually be allowed to testify.
So, what we are looking to for guidance are the Tennessee Rules of Evidence. The first one we will review is Rule 404, which is titled, “Character Evidence Not Admissible to Prove Conduct.” It states that, “Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:…”
What that is saying is, someone cannot get up and testify and say, “Well, I saw them drunk the last five Fridays, so they must have been drunk the next Friday, but I did not actually see them drunk then.”
As you can see, from the quoted portion, there are exceptions to this. In criminal cases as it pertains to the accused and any alleged victim, but, remember, the character evidence must also be deemed to be relevant by the court to what is being decided in the case.
Continuing the discussion of character witnesses, lets look at Tennessee Rule of Evidence 608, which is titled, “Evidence of Character and Conduct of Witness.” This rule is very lengthy and can be hard for even lawyers to read, but let me try to compress it down to the basics for you.
If you want to attack a witnesses’ credibility by having another witness give their opinion or testify as to the first witnesses’ reputation, they can only talk about the first witness’ character as it relates to truthfulness or untruthfulness, and nothing else.
So while character witnesses can potentially testify, it is not as common of a thing as you may think.
Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties. He works in many areas, including criminal, personal injury, landlord-tenant, probate, and estate planning. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.