EVIDENCE LAW

RESEARCH PAPER
On

“Value of Clean Character as Evidence under

Trials”

Submitted By:
Sanidhya Gupta
A3211120175
Section C, Ba.Llb (h)

Aryan Sharma
A3211120160
Section C, Ba.Llb (h)

Submitted To:
Prof. Garima
Faculty of Evidence Law

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Abstract

Character can play a huge role in criminal jury trials. For example, prosecutors often
introduce the details of a defendant’s prior conviction to establish, either directly or
indirectly, the defendant’s bad character. Prosecutors then argue, or at least imply, that the
defendant acted in conformity with that character on the day of the charged crime.

In other cases, defendants who have maintained a clean record want to use that as evidence of
their good, law-abiding character. Surprisingly, however, the law usually does not permit it.
Courts have developed two reasons for hiding a defendant’s clean-record evidence from the
jury, both of which are deeply flawed.

First, courts invoke a theoretical objection: it does not necessarily follow from a clean record
that the defendant is law-abiding, as he could just be a clever criminal who has evaded
detection for years or decades. This Article explains that such reasoning has already been
debunked in analogous contexts. Rather, admissibility is determined by relevance, and a
clean record easily clears that low hurdle.

Second, other courts invoke a technical objection: clean-record evidence does not qualify as
one of the delineated methods of proving character. This Article explains that, because
prosecutors are allowed to use criminal records as evidence of bad character, the principle of
symmetry demands that the defendant be allowed to use comparable evidence to demonstrate
good character. Further, whether symmetrical or not, rules of evidence must yield to the
defendant’s constitutional right to present a complete defense.

Consequently, this Article proposes simple legal reform permitting defendants to present
clean-record evidence to establish their law-abiding character. Additionally, because legal
reform is usually slow to materialize, this Article also presents the defense lawyer with a
theory of admissibility for such evidence, even under the current rules.

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Introduction

The character and conduct of people play a very important role in our day to day lives, people
act and react and go about their daily lives based on their assumptions of what other people
will do. Thus, when a court is asked to judge a person’s conduct on a particular occasion it may
become pertinent to question the person’s conduct.

Character evidence plays an important role in almost all jurisdictions. The character of persons
has been used in order to determine guilt for centuries. Over the years the law has evolved and
the applicability of character evidence to civil and criminal cases has become limited. The
character sought to be proved, may be of the parties to the proceedings, the witnesses or even
third parties. Through this paper, the researcher seeks to study the Indian as well as the English
position on the law of character evidence in civil cases.

While talking about character evidence, there are two important questions to be asked, firstly,
whether the character of a person is relevant, and if relevant under what circumstances they
become so relevant. The second question to be asked is when such character becomes relevant,
how it is to be proved. This paper seeks to address these questions.

In addition to the above questions this paper also seeks to look into how such character evidence
is appreciated and whether it is possible to evaluate such evidence objectively without being
influenced by various biases. The researcher takes the example of custody cases, across
jurisdictions to try and answer this question.

What is Character?

The character of a person is a summary of his past actions whether good or bad. English Law
does not have a single, well defined technical meaning for character, it is however understood
to include both disposition as well as reputation. Similarly the Indian Evidence Act, under the
explanation to Section 55 makes a feeble attempt to explain the meaning of character, it merely
states that the word ‘character’ includes both disposition as well as reputation. However
disposition and reputation are not the same thing.

Disposition of a person is what he actually is, it means a person’s entire character or “the sum
of inherited and acquired ethical traits which gives a man his individuality,” sometimes
character may also mean a single trait such as honesty, chastity etc.

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Reputation on the other hand is the community opinion as to what a person is supposed to be.
It should be noted that in law, reputation is the chief means of proving a person’s character.
Evidence of the general reputation of a person affords the basis for an inference as to the actual
character. However the words character and reputation are used synonymously.

Circumstances Under Which Character Evidence May Be Adduced-

In both English law as well as Indian law, the evidence of a person’s character may be offered
under two circumstances, firstly to prove its existence as one of the facts in the case, that is
character as a fact in issue and secondly to prove its existence as circumstantial evidence in
order to prove another fact therein. In the first case, the character of the person is the disputed
fact and it is the existence of such character which has to be proved by evidence, while in the
second case character is offered and used as evidence, as the basis to infer some other facts in
the case.

THE HEARSAY RULE

This distinction is important where the rule of hearsay is concerned. A hearsay statement is
defined as an assertion other than one made by a person while giving oral evidence in the
proceedings tendered as evidence of the facts asserted. This means that oral evidence when
tendered must be directly connected to the fact in issue. Any other statement which is not
directly connected to the fact in issue would be a hearsay statement.

Reputation mostly consists of accumulation of hearsay evidence about what a person’s

character is generally believed to be instead of what it actually may be. It may be based on
rumour and conjecture and may also be a prejudiced opinion.

When such evidence is tendered with respect to facts in issue, it is not considered to be hearsay
evidence, as the reputation of the person is the fact in issue. However when reputation is looked
at as circumstantial evidence to draw an inference with respect to another fact, it is considered
to be testimonial evidence where the community expresses an opinion on the reputation of a
person, and this is admissible as an exception to the rule of hearsay.

Since in the latter cases, reputation is used as an exception to the hearsay rule, it is allowed
only in cases where it takes a solid and definite shape so as to justify its acceptance. Mere
rumours are not accepted, what is accepted though is the general estimate of the entire

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community, not what a few people might say. If the public opinion is decidedly divided, it may
not be relied upon. This restriction however is difficult to observe as reputation is a subjective
term, and there will always be people who differ from others in their opinion about a person’s
character. It is difficult to find unanimity.

In recent years however, the focus has shifted towards the accused’s disposition to behave in
certain ways, previous convictions etc. as more reliable evidence of character.

The Distinction Between Character Evidence in Civil and Criminal Cases

When the character of a person is the fact in issue, proof of general character may be received
in both civil and criminal cases, however when the character is not a fact in issue, but is instead
used as circumstantial evidence to prove other material issues, then it is allowed only in
criminal cases, and under certain circumstances in civil law.

This is true of both English law as well as Indian law, Section 52 of the Indian Evidence Act
makes it clear that evidence of character to prove conduct imputed is irrelevant unless it appears
from the facts to be otherwise relevant. Thus the test for admissibility is relevance.

The same is applicable to English Law. This was first explained in Attorney General v. Radloff
where it was observed that in criminal cases, evidence of the accused’s good character was
admissible as there was a just presumption that a person of good character would not commit
a crime. It was further stated that in civil cases, such a presumption would not arise as the
nature of the offences was such that they had nothing to do with character. In subsequent
English cases as well it was held that character of the accused was relevant in criminal cases
and irrelevant in civil cases.

Most civil cases deal with contracts, or promissory notes etc. which are not matters that involve
reckless wrongdoing, or morally reprehensive conduct, in a majority of cases, the subject
matter is irrelevant to the character of persons so it is never accepted as evidence. Character
evidence is thus accepted only in situations where the facts show that it is relevant.

Though the test appears to be relevancy, there are several civil cases where the character of a
person becomes relevant and yet character evidence is excluded. For example in tortuous claim
against assault or negligence, the good character of the defendant would be relevant, yet

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character evidence is not accepted in tortuous claims while it is accepted in criminal actions
for the same offences of assault or negligence.

Similarly, in quasi criminal cases, where features belonging to classes of action can be found,
civil courts do not entertain character evidence even if it could be accepted in a criminal court
for the same offence. Likewise it is seen that when criminal charges are involved in a civil suit
character evidence is not admissible.

One of the reasons for this in both India as well as England is stated to be a policy decision in
order to restrain civil proceedings within manageable limits and prevent protracted legal
proceedings. It is said that such a move has been made in order to prevent unfairness to civil
litigants as they cannot be expected, to protect themselves against allegations of bad character
which may range over their whole life.

However this reasoning should hold good for criminal cases as well, as character evidence in
criminal cases may also involve imputations which may range throughout one’s life. The
reason for allowing for character evidence, here may be because of the fact that the
repercussions of a criminal trial are different from that of a civil case. Criminal cases involve
the possibility of imprisonment. For example, the Indian Penal Code provides imprisonment
of three months for assault without grave and sudden provocation. While a tortious claim
against assault will only result in damages. This might be one of the reasons behind admitting
character evidence in criminal cases.

Character Evidence When Admissible-

Thus we can see that character evidence in civil cases is admissible when

The character of the party or third party is a fact in issue

The character of the party or third party becomes relevant from the facts of the case, that is
when it is needed as circumstantial evidence to prove another fact in issue.

The character of a witness is in question.

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CHARACTER AS FACT IN ISSUE

Whether or not character is a fact in issue depends on the facts of the case. In defamation cases
for instance, the character of the plaintiff becomes a fact in issue. When the plaintiff alleges
that the defendant has defamed him and damaged his character, the plaintiff’s character
becomes a fact in issue as the plaintiff has to prove what his character was before the
defamation, and how this act of libel or slander has affected his reputation.

In the case of Raghu Nath Pandey v. Bobby Bedi the producer of a movie ‘Mangal Pandey’
based on the life of a freedom fighter by the same name, was sued by the family members of
Mangal Pandey, on the grounds that the depiction of his character as a drunkard having illicit
relationships with prostitutes effected his reputation and that of his family members. The
makers of the movie asserted that what they depicted was true and that they had reached the
conclusion based on research. Thus the court had to look into historical texts and determine his
reputation.

Similarly in B. Vasanthi v. Bakthavatchalu a case dealing with the custody of the minor
children of the divorced parents, the wife asserted that the husband was of bad character as he
had illicit affairs with several women whom he brought home, she alleged that he was a habitual
drinker and that he beat the children while he was intoxicated, and it was also stated that he
had discontinued their daughter’s education.

The husband on the other hand while denying these allegations, claimed that the wife was a
bad influence on the children as she often threatened to commit suicide before them, she was
also said to be indifferent towards the children, he also claimed that she used to have illicit
relations with another man, who visited her at home frequently. He alleged that she prevented
the daughter from going to school in order to make her deliver letters to her paramour.

Thus in this case, the characters of both the plaintiff and the defendant are facts in issue as it is
important to determine the character of the parents in order to decide who had the best interests
of the children in mind.

The Supreme Court while interpreting Section 6(a) of the Hindu Guardianship and Minority
Act, 1956 in Geeta Hariharan vs. Reserve Bank of India stated that if it could be showed that
the father of the child was indifferent to the child then the mother would become the natural

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guardian. Thus again the character of the father will become a fact in issue as the guardianship
of the child will depend on the indifference of the father.

Similarly in the English case of Hurst v. Evans an insurance company was sued in order to
collect money from an insurance policy. The insurance company contended that the loss was a
result of the plaintiff’s servant’s dishonesty. Thus the court held that the honesty of the servant
was a fact in issue and as such evidence was allowed in order to show that he was a person of
questionable character as he was always found in the company burglars and that he had entered
the house with the help of a false reference letter. This is also an example of how the character
of a third party to the suit becomes a fact in issue.

WHEN CHARACTER BECOMES RELEVANT

When character of a person is not a fact in issue, it may still be a relevant fact and as per section
52 of the Indian Evidence Act, it would be admissible. Various English cases have also held
that character evidence would be admissible if it could be shown that it was relevant.

In suits for damages for example, though character may not be a fact in issue it is still a relevant
fact that may be considered in order to mitigate the extent of damages. Therefore, in suits for
damages against defamation, breach of promise to marry, seduction, adultery etc. evidence of
character is admissible in both English law as well as Indian law.

Section 55 of the Indian Evidence Act, specifically states that if the character of a person is to
affect the amount of damages he should receive then evidence of character becomes relevant.
While evidence of bad character of the plaintiff may be given in order to mitigate the extent of
damages, evidence of good character may not be given in order to increase the extent of
liability.

Similarly in cases of guardianship, the character of the proposed guardian becomes relevant.
Section 10(1) of the Guardians and Wards Act, states that the qualifications of the proposed
guardian should be stated in the application itself and that no guardian can be appointed without
an enquiry into his fitness for the job. This has been interpreted to mean that where a court
appoint a man as guardian without inquiring into his character and fitness such a procedure
will be declared irregular.

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CHARACTER EVIDENCE AND VERACITY OF WITNESSES

Character evidence can also be used in order to shake the veracity of the witnesses. A witness
is supposed to be truthful and possess the disposition to tell the truth. Normally, the honesty of
a witness is presumed and the witness is not allowed to adduce evidence of his good behaviour
until his character is attacked. Both English law and Indian law allow for the questioning of a
witnesses’ character during cross examination. As per section 142 of the Indian Evidence Act,
the witness may be cross examined in a manner as to impeach his credit by injuring his
character. This may be done even in cases where character evidence is not relevant to decide
the outcome of a case.

While attacking the witnesses character, evidence adduced must be pertinent to his veracity to
tell the truth, as the object is to ascertain the witnesses character as an honest person.

While we have determined the circumstances under which character evidence is admissible,
what remains to be seen is the manner in which it is appreciated. Whether it is possible to
evaluate character objectively without being biased. This section seeks the help of custody
cases from different jurisdictions in order to show that no matter where the court is situated,
subjectivity creeps in to the proceedings when courts are asked to determine the character of
the individual. It can be seen that depending on the social setting, the times in which the
judgements were delivered and other biases the manner in which the same character evidence
was perceived changes. Not only is the evidence adduced coloured by the prejudice of society,
the judges perception of good character and bad character also influence decision making.

Gender Biases

Earlier English cases refused to grant custody of children to the mother accused of adultery,
while an exception was made in cases where the father was guilt of the same offence. It was
believed that mothers accused of adultery were not were not of good character and were hence
unfit to raise children. This view was changed over time, and it was held that parents accused
of adultery will not be deprived of the custody of the child. It was held that adultery would
have no bearing on the welfare of the child. While gender had nothing to do with the offence
of adultery, women were considered to be of worse character than men and thus they were not
given their rights.

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Racial Biases

In the case of Portnoy v. Strasser where the custody of the children was contested between the
natural mother and the grandmother, the court awarded custody to the grandmother on the
grounds that the natural mother was of questionable character having remarried a man of a
different race. This perception was later changed many years later where the U.S Supreme
Court held that such prejudices should not creep into decision making. We can see that even
though race could not have had an impact on the welfare of the child, the judges bias against a
particular race made him perceive the woman to be of a bad character.

Religious Biases

In several other cases, religion has operated as a bias. For example in the case of A.B. v.
C.B. [29] where the mother of an illegitimate child sought to revoke consent for the adoption
of the child, the court looked at the religious sensibilities of the parties to determine their
character. It was held that the mother of the child was not a practicing catholic and that she
herself was an illegitimate child. The adoptive parents on the other hand were perceived to be
of good character as they were practicing Roman Catholics, and hence custody was granted to
the adoptive parents using the best interest principle.

Similarly in another English case, Helen Skinner v. Sophia Evelina Orde, where an English
lady residing in India, who lost her husband during the sepoy mutinies of 1857, sought to
convert to Islam in order to become the second wife of an Indian Muslim man, her conversion
was deemed to be immoral and the custody of the child was taken away from the mother.
Distrust towards another religion and the coloured views of the judge on religion lead to the
branding of the woman as a person of bad character.

Conclusion

Through this paper it is clear that limiting the circumstances under which character evidence
may be introduced in civil cases is a step in the right direction. The last section shows that it is
difficult to appreciate character evidence objectively as one’s views in society will always be
coloured by the trends prevalent in society at that given time. This leads to situations wherein

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a person having a good case on all other fronts losing because society at that point in time
perceives him to be of bad character.

We cannot however completely do away with character evidence in civil cases as there are
several instances where the character of a person itself becomes a fact in issue. In such
situations character will have to be looked into. However while dealing with these cases the
courts should be aware of the prejudices that exist in society and tread carefully.

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