By Collin County Criminal Defense Lawyer Jeremy Rosenthal
One of the most common questions that I am asked is whether the countless years or decades of a clean-record counts for anything at trial. The good news is that it does but theres lots to consider.
Texas rule of evidence 404 is a rule which discusses when character evidence is relevant, what limitations are on the types of character evidence may be admitted, and when character evidence may be appropriate.
Generally evidence of “a persons” character is not admissible at all to prove conformity therewith on a particular occasion. The exceptions, though, tend to swallow the rule.
Tex.R.Evid. 401(a)(1)(A) allows the defense to proffer character evidence of the accused in a criminal case. The same rule allows the prosecution to attack that character evidence if the defense “opens the door” by injecting character as an issue.
Remember — there are two possible phases to a criminal trial. Guilt/Innocence and punishment. Character evidence is wide-open in the punishment part of a trial. I’m really focusing this article on the trickier part — guilt/innocence.
From a trial lawyers standpoint — proving up good character in the guilt innocence phase is always trickier than it may seem. Remember that courts only allow evidence through the formal rules which means that good character will almost always have to be proven through a live witness of some sort. That witness will be subjected to cross-examination… and depending on the facts, your trial attorney will have to do a cost-benefit analysis of whether it is worthwhile to prove-up character in light of the potential cost.
Let’s take a DWI case for example. Let’s say that a person who was out that evening with the accused would testify that the defendant always calls a taxi if they thought they had too much to drink. But let’s also say that person drank so much on the night in question himself that he doesn’t remember how much the accused had to drink. That witness may add value to the case through his positive testimony about the defendant’s traits — but could ultimately hurt the case over-all in light of what he would reveal on cross-examination.
These are they types of decisions experienced criminal defense lawyers, dwi lawyers and dui lawyers must make on a routine basis.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice you should directly consult an attorney about any legal issue.