If you are charged with a sex offense, can you call witnesses on your behalf to show that you are a sexually appropriate person? The answer is yes, and here we will explain how and what the limitations in court are for this kind of evidence.
Section 404 of the Oregon Evidence Code states that evidence of a person’s character, or trait of character, is admissible when it is an essential element of a charge, claim or defense. However, evidence of a person’s character is not admissible for the purpose of proving that the person acted in a certain way specific to an occasion.
When such evidence is admissible, proof can be made through testimony about a person’s reputation, or by testimony in the form of an opinion. A character witness is then subject to questions about relevant, specific instances of conduct by the cross-examiner. Evidence of a person’s character with respect to sexual propriety shows that a person is likely to act in a sexually proper manner.
During the cross-examination of a character witness, it is improper to bring up prior instances of conduct of the defendant when they do not tend to undermine the testimony of the character witness. For instance, in 2005, the mother of the defendant in a sex abuse trial testified that the defendant was not sexually aggressive. However, the trial court erred in allowing the prosecutor to cross-examine the defendant’s mother regarding an incident at a play fort when the defendant was nine years old, in which the defendant exposed himself and asked others to do the same.
Courts are likely to restrict questioning about specific instances of conduct that are too remote in time. Whenever prior specific instances of conduct are brought out upon cross-examination of a character witness, the proponent of the witness is entitled to limitations such that inquiries are only to be considered as bearing on the credibility of the character witness, not as evidence that such conduct actually occurred.
Questions regarding specific instances of conduct regarding a person’s reputation should be prefaced with “have you heard.” Questions regarding specific instances of conduct, when the answer is an opinion, should be prefaced with “do you know.” Finally, the cross examiner is required to accept the witness’ answer to a question regarding specific instances of conduct. Extrinsic evidence to throw out an answer given upon cross-examination is not allowed.
This article paraphases the linked legal document, in which all citations/codes are included.