Can I talk about the time when he…?

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Your client recently terminated Marvin’s employment because it believed he falsified company records. Marvin has since sued, alleging that he was retaliated against because of a previous lawsuit filed against the company.

At the hearing, Marvin argues that he did not falsify company records and that the company’s reasons for terminating him are pretext for discrimination. In support of his position, Marvin, who is pro se, goes into a rambling narrative (which the administrative law judge allows) about how he is a God-fearing man and, as a matter of principle, simply does not lie. He also seeks to introduce evidence that your client has taken action against others in the past who complained of discrimination.

Your client wants you to argue that Marvin is a compulsive liar and was terminated by previous employers for falsifying documents. Your client also wants you to get into Marvin’s criminal record, which includes convictions for crimes involving dishonesty.

Can you do this? Put another way, can you get into Marvin’s prior bad acts? Can Marvin get into your client’s prior acts? And what about the judge? Was it appropriate to allow Marvin to get into “good character” evidence to cast doubt into the company’s reasons for terminating his employment?

At issue here is whether or not evidence of character from a person’s prior acts is admissible. Generally, evidence of a person’s character to show that that person likely behaved in a certain way on a particular occasion is inadmissible. As with many rules of law, however, there are several exceptions.

For instance, evidence of prior conduct may be used in cases in which character or a trait of character is an essential element of the claim(s) involved. For employment cases, this is rarely the case and therefore not a consideration most of the time. Another exception is evidence of habit and routine, which can be used to show that a person engaged in specific conduct on a particular occasion. In order to be admissible though, this type of evidence must concern very specific and detailed reoccurring conduct. This is often a very difficult showing and, again, typically not a consideration in employment cases.

Evidence showing propensity simply has a hard time getting in, especially in civil cases. Accordingly, the company may have a difficult time introducing Marvin’s prior bad acts into evidence to show propensity. Similarly, Marvin will have a hard time getting his prior good acts into evidence. This is not to say, however, that there are no other ways to get this type of evidence into the case.

In determining whether to allow prior acts to come into play in employment cases, the 7th Circuit has laid out a four-part test. In Gastineau v. Fleet Mortg. Corp., 137 F.3d 490, 494-495 (7th Cir. 1998), the court held that:

“In this Circuit, evidence of prior acts is admissible if it meets a four-part test:

The evidence must be directed toward establishing something at issue other than a party’s propensity to commit the act charged;

The other act must be similar enough and close enough in time to be relevant to the matter at issue;

The evidence must be such that the jury could find the act occurred and the party in question committed it; and

The prejudicial effect of the evidence must not substantially outweigh its probative value.”

Many times, the prejudicial effect of such evidence outweighs its probative value since the evidence, by its very nature, has a tendency to suggest propensity. To avoid this, every effort must be made to detach the evidence (to the extent possible) from its “nature.”

One way to do this is to focus on intent, rather than propensity. Under FRE 404, evidence of other crimes, wrongs, or acts may be admitted for the purpose of proving, among other items, motive, opportunity and intent. In employment cases, discriminatory intent rules. This is why, from an evidentiary standpoint, evidence of an employer’s treatment of others outside of an employee’s protected class is relevant and admissible.

Another way to separate evidence of prior acts from a showing of propensity is through witness credibility and truthfulness. When a witness takes the stand, his/her truthfulness or untruthfulness is at “trial.” Accordingly, a party may (with limitations) support or attack the credibility of a witness with character evidence.

FRE 607, for instance, allows a party to impeach or cross on truthfulness. FRE 608 allows a party to get into opinion and reputation evidence of character as well as specific instances of conduct to support or attack a person’s character for truthfulness or untruthfulness. See Altobello v. Borden Confectionary Products, Inc., 872 F.2d 215, 217 (7th Cir. 1989) (holding that a misdemeanor conviction for tampering with electric meters was admissible to impeach credibility since the crime involved deception).

Under this framework, Marvin’s prior bad acts then can potentially come into evidence in the form of attacks against his credibility and truthfulness as a witness. Should your client elect to go this route, though, it should be advised that attacking Marvin’s truthfulness could open Pandora’s Box.

Generally, witnesses cannot bolster and unilaterally bring in good character evidence to prove up their veracity. Once their character for truthfulness has been attacked, though, character evidence in support of credibility becomes admissible. Accordingly, Marvin would be free to discuss and introduce evidence, either through opinion and reputation testimony or testimony of specific incidents of conduct that he, as a God-fearing man, tells the truth.

Character evidence through prior acts can help or hurt your client’s case. Accordingly, always be mindful of what you ask for. While there are ways to get into evidence of character through a person’s prior acts, doing so gives the other side the opportunity to do the same, which is rarely a desired result.