Child Custody


P and D are suing each other for divorce. At issue is the custody and visitation of the couple's two children. Each asserts that she or he is the more fit parent for the children and seeks to prove that the other is unfit as a parent. What kinds of evidence of the "character" of P or D as a parent can the judge receive to assist her in deciding these issues? How about the following?

    1. Evidence that P threw a canoe from the roof of the family car to the ground in an angry rage after a quarrel with D?

    2. Evidence that D has the reputation in the community as a conscientious and caring parent?

    3. The opinion of one of the children's teachers that P is a thoughtful and capable parent?

    4. Evidence that on one occasion prior to the trial D left one of the children (aged 4) alone in an unlocked automobile outside the Post Office for 5 minutes

Eloquent as is Justice Jackson's opinion in Michelson, he makes the rules relating to proof of character seem even more arbitrary than they are. As Michelson and the three problems that follow demonstrate, the rules present a balance between how central proof of character is to the litigation and how much time it takes to prove character. The most compelling way to prove character is by proving a person's specific acts, yet this form of proof can be extremely time-consuming. The rules permit this form of proof when character is an essential element of the case. When character is not an essential issue, the rules bar this time-consuming form of proof, limiting proof of character to the less compelling but far more time-efficient forms of reputation and opinion testimony. Thus, Rules 404 and 405 express particularized judgments of the general balance between probity and "confusion of the issues,... waste of time, or needless presentation of cumulative evidence'' set out in Rule 403. The balance is sometimes struck in favor of total exclusion of character evidence (e.g., in civil cases for purposes of proving what happened on the occasion of the litigated event, as opposed to use of character in attacking the credibility of witnesses). Sometimes the balance is struck in favor of admissibility (e.g., proof of a defendant's good character in a criminal case) but with the form of proof limited to short-cut second-rate forms of proof, or in favor of admissibility with no restriction on the form of proof (e.g., when character is an essential element of a claim or defense).

The holding of Michelson has been codified in the second sentence of Rule 405(a): "On cross-examination, inquiry is allowable into relevant specific instances of conduct.'' The reasoning behind this approach is that when a defendant introduces evidence of his own good character, in effect he makes the very propensity argument that the prosecution is forbidden from using. This is the accused's choice. The defendant uses reputation evidence to persuade the jury that he is not the kind of person who would commit an act such as the one he is charged with committing. But once raised, the prosecution may not only attack the pertinent character or propensities of the defendant (Rule 404(a)(1)) by calling its own character witness (first sentence of Rule 405(a)), it may also attack the witness attesting to the defendant's good reputation. The attack is either on the witness's knowledge or standards or both. In practice, this response is not very limited since the prosecution may ask questions about virtually any "relevant specific instances of conduct'' of the defendant that he (the prosecutor) has a good faith reason for believing occurred.

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