University of Nairobi

Faculty of law
Law of Evidence
Eugene Ishmael Odhiambo
G34/142833/2021
Admissibility of character evidence and intoxication in criminal laws
Character evidence and intoxication are generally prohibited in criminal law because they fail
to meet the test of reliability. That is, there is no consensus that an individual's character can
be known with any degree of accuracy. This lack of agreement on the reliability of such
evidence may stem from the possibility that individuals lead such different lives, and so can
have different characters, but it also stems from the belief that character evidence itself is
unreliable.
Character is a characteristic that tends to distinguish between people who are likely to
commit crimes. Character evidence generally comes from the defendant's own admission or
confession, or from some other similar source such as an eyewitness’s’ testimony.
Intoxication is a state of diminished capacity and cannot be allowed as a defense so it is also
prohibited in criminal law as character and intoxication do not coincide as evident from the
facts of this case.
Character evidence and intoxication are generally prohibited in criminal law because they
serve as the sole means by which a jury may determine whether an individual acted
reasonably or unreasonably.
Character evidence
It is evidence based on an individual’s personality, traits and moral standings 1. The general
rule under common law is that it is inadmissible in criminal cases. The exception to this rule
arises the moment the issue is raised solely by the defendant. In Kenya this is provided for
under section 57(b) of the Evidence Act. Once raised the defendants witnesses can be subject
to cross examination as seen in the case of Michelson v United States2, where the defendant
who was on trial for bribing a federal agent called upon a witness to prove he was a good
character. The prosecution was then allowed to cross examine the witness in order to rebut
the evidence. This case also set out the precedent that character evidence is not irrelevant but
its use is limited however, as stated “it is said to weigh too much with the jury and to so over-
persuade them as to prejudge one with a bad general record and deny him a fair opportunity
to defend against a particular charge.”
Additionally, pursuant to rule 404 of the Federal Rules of Evidence 3, character evidence is
not admissible to prove conduct.
1
‘Character Evidence’ (LII / Legal Information Institute)
<https://www.law.cornell.edu/wex/character_evidence> accessed 7 November 2022.
2
‘Michelson v. United States, 335 U.S. 469 (1948)’ (Justia Law)
<https://supreme.justia.com/cases/federal/us/335/469/> accessed 7 November 2022.
3
‘Rule 404 - Character Evidence; Other Crimes, Wrongs or Acts — 2022 Federal Rules of Evidence’ (Federal
Rules of Evidence) <https://www.rulesofevidence.org/article-iv/rule-404/> accessed 7 November 2022.
Firstly, character evidence is generally prohibited in criminal law because can they lead to
unfair results since a person may be declared guilty based only on what others say about
them, rather than what they actually did as witnesses may sometimes lie in a suit. Evidently,
in the case of Pope v Federal Exp. Corp.4 the plaintiff sued the employer for sexual
harassment. It was later discovered that the plaintiff had produced fabricated evidence and
that she had not actually been harassed in any way. Solely relying on this evidence would
have ultimately lead to wrongful convictions as seen in Adams v State,5 where the plaintiff
was convicted for murdering a police officer based off of a testimony given by the another
witness who was actual killer6.
Secondly, in criminal law, character evidence is generally prohibited in some jurisdictions,
this may be because they are considered unreliable: while characteristics like honesty can
sometimes give us some insight into a person’s personality, they are also notoriously easy to
exaggerate and disguise before a court and jury in order to increase credibility. This was seen
in the case of Achhar Singh v State of Himachal Pradesh7, the appellants attempted to argue
that they had been convicted based only from exaggerated witness accounts however, their
conviction was upheld by the court since it had discarded the exaggerated evidence and
derived their ruling from facts of the case.
The general prohibition against the use of character evidence in criminal cases is based on the
principle that all persons are presumed to be innocent. Therefore, an accused cannot be tried
guilty of a crime based on their prior criminal record unless that record has been proven to be
true by evidence. In addition, regardless of whether someone is charged with a crime related
to theft or murder, character evidence can be introduced only if it has been proven truthful.
Additionally, character evidence placing guilt on the accused because of previous criminal
records in this context would be going against the rule set out in Article 11 of the Universal
Declaration of Man8, which states that everyone has the right to be presumed innocent until
proven guilty.

Character evidence is not considered reliable evidence in criminal law. This is because
character is usually an opinion and can be influenced by personal bias and relevant
experience. This is seen in the case of Achhar Singh v State of Himachal Pradesh where the
defendants argued that the nature of the exaggerated witness accounts had been influenced by

4
‘Pope v. Federal Exp. Corp., 138 F.R.D. 675 | Casetext Search + Citator’ <https://casetext.com/case/pope-v-
federal-exp-corp-4> accessed 8 November 2022.
5
‘Adams v. State’ (Justia Law) <https://law.justia.com/cases/texas/court-of-criminal-appeals/1979/60037-2-
1.html> accessed 8 November 2022.
6
‘Randall Dale Adams - National Registry of Exonerations’
<https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=2984> accessed 8 November
2022.
7
Oishika Banerji, ‘Exaggerated Evidence Discarded by a Witness: Critical Analysis with the Help of Judgments’
(iPleaders, 17 June 2021) <https://blog.ipleaders.in/exaggerated-evidence-discarded-witness-critical-analysis-
help-judgments/> accessed 8 November 2022.
8
‘Article 11 of The Universal Declaration of Human Rights’
<https://www.humanrights.com/course/lesson/articles-06-11/read-article-11.html> accessed 8 November
2022.
the fact that the witnesses themselves knew the victims (complainants). Hence giving rise to
another rationale behind prohibition of the use of character evidence, which is courts lack
proper means of ascertaining whether witness testimonies are biased based on preconceived
notions about the defendants.
They also tend to move very slowly in court and are difficult for jurors to assess properly,
since “good character testimony often requires that the storyteller demonstrate how he or she
got along with other people whom we consider trustworthy” (Allan, 2016).

Admissibility of Intoxication
In order to establish criminal liability on an individual, the prosecution must first establish the
criminal act committed, the criminal intent and criminal negligence that occurred in due time
on the suspect’s side. Following the three mentioned factors, it would then be unjust to
punish an individual for an act they committed unless they had malicious intentions or were
simply negligent in what they did.
Intent in criminal law can be divided into two types 9; specific intent which is presumed from
a lawful act being done with malicious intention behind it with the perpetrator wishing for a
specific result and; general intent presumed from commission of an act. Notably, constructive
intent (a result of an unintentional act) arises from general intent because they are proven
when an unintentional crime occurs as a result of an act of general intent. Most crimes
involving intoxication usually form the basis for constructive intent though not always.
Intoxication is an available defence10 in criminal cases in order to show that the individual
was so intoxicated that they did not understand the nature of their actions or they did not
know that their actions were wrongful. However, the defence comes under more scrutiny
based on whether the intoxication was voluntary or involuntary.
Involuntary intoxication11 occurs when the individual unknowingly consumes intoxicating
drugs as a result of trickery. Involuntary intoxication is a valid defense acceptable in for
general and specific intent crimes. Voluntary intoxication is willingly ingesting drugs. It is
only available as a defense for specific intent crimes. This defense does not usually
completely absolve the defendant but may reduce their liability. In both defenses the onus is
always on the defendant to prove how the intoxication prevented them from distinguishing
right from wrong or actually made them unable to form the intent necessary for committing
the crime.

According to Blackstone, the English law looked upon voluntary intoxication as an

aggravation of the offense and not a defense. Lord Coke says, “He who becomes voluntarily

9
‘General Intent Crimes | Intent Types & Examples - Video & Lesson Transcript’ (study.com)
<https://study.com/academy/lesson/general-intent-crimes-definition-examples.html> accessed 9 November
2022.
10
‘Intoxication Defense in Criminal Cases’ (Justia, 25 April 2018)
<https://www.justia.com/criminal/defenses/intoxication/> accessed 9 November 2022.
11
ibid.
intoxicated, hath no privilege thereby; but what hurt or ill so ever he doth, his drunkenness
doth aggravate it."
However, in People v Batting it was established that voluntary intoxication can reduce the
offence of murder from first degree to the second degree. The rationale behind this is that
intent is a vital ingredient for a first degree murder case but one must still face action for their
criminal acts. Hence all the intoxication does is deprive the defendant of the power to
establish intent the action.
Ultimately, the rule set out in People v Leonardi12 is that the court should not allow
intoxication to alter the character or grade of the criminal act unless they have a fair and
reasonable doubt of the existence of the necessary criminal purpose or intent after a
consideration of such evidence of intoxication.
The admissibility of intoxication is still open to question as it can subject the defendant to
bias before a jury hence ab initio being considered guilty. Thus, if a defendant wishes to
avoid being found guilty due to character bias or because they were intoxicated at the time of
the incident that allegedly led up to prosecution then they must not only prove their
innocence but also disprove any forms of evidence or testimony presented against them by
the prosecution.
Intoxication is also an unreliable way to determine whether someone committed a crime and
therefore should only be used as a secondary consideration in criminal proceedings.
Evidence of a person's intoxication at the time of the alleged offense is also typically
excluded because it may unfairly stigmatize that person and influence the jury to vote against
them without necessarily addressing the relevant facts and evidence of the case.
The prohibition on intoxication can be justified following the reasoning that it is important to
allow a defendant's conduct to serve as his own defense in court without being tainted by
having been done under coercion or other improper influence.
In summary character evidence is generally prohibited in criminal law because of its
tendency to clearly bias the jury and similarly intoxication shares the prejudicial nature of
character evidence. Both cannot be declared completely inadmissible in court despite the
general rule stating so. The law provides guidelines and conditions which they can be
introduced in a case for example, in order to be admissible, evidence must be relevant to the
relevant question under examination and have probative value for being used as an indicator
that is reliable as discussed.
The prohibition of character evidence and intoxication is primarily based on the idea that the
intention of the law is to punish people in an objective and consistent manner, regardless of
their personal characteristics. Thus, the evidence a jury sees is likely to influence them more
than it should in a case and this can result in inconsistent verdicts.

In the end both cannot be completely disregarded to be inadmissible as truly there are certain
cases where both can admissible in court as a form of proof. This should only be applicable s
12
‘PEOPLE v. LEONARDI, 143 N.Y. 360 | N.Y., Judgment, Law, Casemine.Com’ (https://www.casemine.com)
<https://www.casemine.com/judgement/us/5914ab05add7b0493472deea> accessed 9 November 2022.
only in circumstances where the evidence presented is vital to the case at hand and does not
contain any intentional lies or acts of deception, and once those conditions have been met
then character evidence and intoxication be used as part of a trial. The main purpose of the
practicing law should always be aimed at administering just and fair decisions, and as long as
appropriate routes are followed then the use of relevant aids in doing so will certainly be
justified.