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Published: Fri, 02 Feb 2018
Character evidence and the role it plays in court
The character and conduct of people play a very important role in our day to day lives, people act and react and go about their daily lives based on their assumptions of what other people will do. Thus, when a court is asked to judge a person’s conduct on a particular occasion it may become pertinent to question the person’s conduct. 
Character evidence plays an important role in almost all jurisdictions. The character of persons has been used in order to determine guilt for centuries. Over the years the law has evolved and the applicability of character evidence to civil and criminal cases has become limited. The character sought to be proved, may be of the parties to the proceedings, the witnesses or even third parties.  Through this paper, the researcher seeks to study the Indian as well as the English position on the law of character evidence in civil cases.
While talking about character evidence, there are two important questions to be asked, firstly, whether the character of a person is relevant, and if relevant under what circumstances they become so relevant. The second question to be asked is when such character becomes relevant, how it is to be proved. This paper seeks to address these questions.
In addition to the above questions this paper also seeks to look into how such character evidence is appreciated and whether it is possible to evaluate such evidence objectively without being influenced by various biases. The researcher takes the example of custody cases, across jurisdictions to try and answer this question.
What is Character?
The character of a person is a summary of his past actions whether good or bad.  English Law does not have a single, well defined technical meaning for character, it is however understood to include both disposition as well as reputation. Similarly the Indian Evidence Act, under the explanation to Section 55 makes a feeble attempt to explain the meaning of character, it merely states that the word ‘character’ includes both disposition as well as reputation.  However disposition and reputation are not the same thing.
Disposition of a person is what he actually is, it means a person’s entire character or “the sum of inherited and acquired ethical traits which gives a man his individuality,” sometimes character may also mean a single trait such as honesty, chastity etc. 
Reputation on the other hand is the community opinion as to what a person is supposed to be. It should be noted that in law, reputation is the chief means of proving a person’s character. Evidence of the general reputation of a person affords the basis for an inference as to the actual character. However the words character and reputation are used synonymously. 
Circumstances Under Which Character Evidence May Be Adduced-
In both English law as well as Indian law, the evidence of a person’s character may be offered under two circumstances, firstly to prove its existence as one of the facts in the case, that is character as a fact in issue and secondly to prove its existence as circumstantial evidence in order to prove another fact therein. In the first case, the character of the person is the disputed fact and it is the existence of such character which has to be proved by evidence, while in the second case character is offered and used as evidence, as the basis to infer some other facts in the case. 
THE HEARSAY RULE
This distinction is important where the rule of hearsay is concerned. A hearsay statement is defined as an assertion other than one made by a person while giving oral evidence in the proceedings tendered as evidence of the facts asserted.  This means that oral evidence when tendered must be directly connected to the fact in issue. Any other statement which is not directly connected to the fact in issue would be a hearsay statement.
Reputation mostly consists of accumulation of hearsay evidence about what a person’s character is generally believed to be instead of what it actually may be. It may be based on rumour and conjecture and may also be a prejudiced opinion.
When such evidence is tendered with respect to facts in issue, it is not considered to be hearsay evidence, as the reputation of the person is the fact in issue. However when reputation is looked at as circumstantial evidence to draw an inference with respect to another fact, it is considered to be testimonial evidence where the community expresses an opinion on the reputation of a person, and this is admissible as an exception to the rule of hearsay. 
Since in the latter cases, reputation is used as an exception to the hearsay rule, it is allowed only in cases where it takes a solid and definite shape so as to justify its acceptance. Mere rumours are not accepted, what is accepted though is the general estimate of the entire community, not what a few people might say. If the public opinion is decidedly divided, it may not be relied upon. This restriction however is difficult to observe as reputation is a subjective term, and there will always be people who differ from others in their opinion about a person’s character. It is difficult to find unanimity. 
In recent years however, the focus has shifted towards the accused’s disposition to behave in certain ways, previous convictions etc. as more reliable evidence of character. 
The Distinction Between Character Evidence in Civil and Criminal Cases
When the character of a person is the fact in issue, proof of general character may be received in both civil and criminal cases, however when the character is not a fact in issue, but is instead used as circumstantial evidence to prove other material issues, then it is allowed only in criminal cases, and under certain circumstances in civil law. 
This is true of both English law as well as Indian law, Section 52 of the Indian Evidence Act makes it clear that evidence of character to prove conduct imputed is irrelevant unless it appears from the facts to be otherwise relevant. Thus the test for admissibility is relevance.
The same is applicable to English Law. This was first explained in Attorney General v. Radloff where it was observed that in criminal cases, evidence of the accused’s good character was admissible as there was a just presumption that a person of good character would not commit a crime. It was further stated that in civil cases, such a presumption would not arise as the nature of the offences was such that they had nothing to do with character. In subsequent English cases as well it was held that character of the accused was relevant in criminal cases and irrelevant in civil cases. 
Most civil cases deal with contracts, or promissory notes etc. which are not matters that involve reckless wrongdoing, or morally reprehensive conduct, in a majority of cases, the subject matter is irrelevant to the character of persons so it is never accepted as evidence.  Character evidence is thus accepted only in situations where the facts show that it is relevant.
Though the test appears to be relevancy, there are several civil cases where the character of a person becomes relevant and yet character evidence is excluded. For example in tortuous claim against assault or negligence, the good character of the defendant would be relevant, yet character evidence is not accepted in tortuous claims while it is accepted in criminal actions for the same offences of assault or negligence. 
Similarly, in quasi criminal cases, where features belonging to classes of action can be found, civil courts do not entertain character evidence even if it could be accepted in a criminal court for the same offence. Likewise it is seen that when criminal charges are involved in a civil suit character evidence is not admissible. 
One of the reasons for this in both India as well as England is stated to be a policy decision in order to restrain civil proceedings within manageable limits and prevent protracted legal proceedings. It is said that such a move has been made in order to prevent unfairness to civil litigants as they cannot be expected, to protect themselves against allegations of bad character which may range over their whole life. 
However this reasoning should hold good for criminal cases as well, as character evidence in criminal cases may also involve imputations which may range throughout one’s life. The reason for allowing for character evidence, here may be because of the fact that the repercussions of a criminal trial are different from that of a civil case. Criminal cases involve the possibility of imprisonment. For example, the Indian Penal Code provides imprisonment of three months for assault without grave and sudden provocation. While a tortious claim against assault will only result in damages. This might be one of the reasons behind admitting character evidence in criminal cases.
Character Evidence When Admissible-
Thus we can see that character evidence in civil cases is admissible when
The character of the party or third party is a fact in issue
The character of the party or third party becomes relevant from the facts of the case, that is when it is needed as circumstantial evidence to prove another fact in issue.
The character of a witness is in question.
CHARACTER AS FACT IN ISSUE
Whether or not character is a fact in issue depends on the facts of the case. In defamation cases for instance, the character of the plaintiff becomes a fact in issue. When the plaintiff alleges that the defendant has defamed him and damaged his character, the plaintiff’s character becomes a fact in issue as the plaintiff has to prove what his character was before the defamation, and how this act of libel or slander has affected his reputation.
In the case of Raghu Nath Pandey v. Bobby Bedi  the producer of a movie ‘Mangal Pandey’ based on the life of a freedom fighter by the same name, was sued by the family members of Mangal Pandey, on the grounds that the depiction of his character as a drunkard having illicit relationships with prostitutes effected his reputation and that of his family members. The makers of the movie asserted that what they depicted was true and that they had reached the conclusion based on research. Thus the court had to look into historical texts and determine his reputation.
Similarly in B. Vasanthi v. Bakthavatchalu  a case dealing with the custody of the minor children of the divorced parents, the wife asserted that the husband was of bad character as he had illicit affairs with several women whom he brought home, she alleged that he was a habitual drinker and that he beat the children while he was intoxicated, and it was also stated that he had discontinued their daughter’s education.
The husband on the other hand while denying these allegations, claimed that the wife was a bad influence on the children as she often threatened to commit suicide before them, she was also said to be indifferent towards the children, he also claimed that she used to have illicit relations with another man, who visited her at home frequently. He alleged that she prevented the daughter from going to school in order to make her deliver letters to her paramour.
Thus in this case, the characters of both the plaintiff and the defendant are facts in issue as it is important to determine the character of the parents in order to decide who had the best interests of the children in mind.
The Supreme Court while interpreting Section 6(a) of the Hindu Guardianship and Minority Act, 1956 in Geeta Hariharan vs. Reserve Bank of India  stated that if it could be showed that the father of the child was indifferent to the child then the mother would become the natural guardian. Thus again the character of the father will become a fact in issue as the guardianship of the child will depend on the indifference of the father.
Similarly in the English case of Hurst v. Evans  an insurance company was sued in order to collect money from an insurance policy. The insurance company contended that the loss was a result of the plaintiff’s servant’s dishonesty. Thus the court held that the honesty of the servant was a fact in issue and as such evidence was allowed in order to show that he was a person of questionable character as he was always found in the company burglars and that he had entered the house with the help of a false reference letter. This is also an example of how the character of a third party to the suit becomes a fact in issue.
WHEN CHARACTER BECOMES RELEVANT
When character of a person is not a fact in issue, it may still be a relevant fact and as per section 52 of the Indian Evidence Act, it would be admissible. Various English cases have also held that character evidence would be admissible if it could be shown that it was relevant.
In suits for damages for example, though character may not be a fact in issue it is still a relevant fact that may be considered in order to mitigate the extent of damages. Therefore, in suits for damages against defamation, breach of promise to marry, seduction, adultery etc. evidence of character is admissible in both English law as well as Indian law. 
Section 55 of the Indian Evidence Act, specifically states that if the character of a person is to affect the amount of damages he should receive then evidence of character becomes relevant. While evidence of bad character of the plaintiff may be given in order to mitigate the extent of damages, evidence of good character may not be given in order to increase the extent of liability.
Similarly in cases of guardianship, the character of the proposed guardian becomes relevant. Section 10(1) of the Guardians and Wards Act, states that the qualifications of the proposed guardian should be stated in the application itself and that no guardian can be appointed without an enquiry into his fitness for the job. This has been interpreted to mean that where a court appoint a man as guardian without inquiring into his character and fitness such a procedure will be declared irregular. 
CHARACTER EVIDENCE AND VERACITY OF WITNESSES
Character evidence can also be used in order to shake the veracity of the witnesses. A witness is supposed to be truthful and possess the disposition to tell the truth. Normally, the honesty of a witness is presumed and the witness is not allowed to adduce evidence of his good behaviour until his character is attacked. Both English law and Indian law allow for the questioning of a witnesses’ character during cross examination. As per section 142 of the Indian Evidence Act, the witness may be cross examined in a manner as to impeach his credit by injuring his character. This may be done even in cases where character evidence is not relevant to decide the outcome of a case. 
While attacking the witnesses character, evidence adduced must be pertinent to his veracity to tell the truth, as the object is to ascertain the witnesses character as an honest person. 
While we have determined the circumstances under which character evidence is admissible, what remains to be seen is the manner in which it is appreciated. Whether it is possible to evaluate character objectively without being biased. This section seeks the help of custody cases from different jurisdictions in order to show that no matter where the court is situated, subjectivity creeps in to the proceedings when courts are asked to determine the character of the individual. It can be seen that depending on the social setting, the times in which the judgements were delivered and other biases the manner in which the same character evidence was perceived changes. Not only is the evidence adduced coloured by the prejudice of society, the judges perception of good character and bad character also influence decision making.
Earlier English cases refused to grant custody of children to the mother accused of adultery, while an exception was made in cases where the father was guilt of the same offence. It was believed that mothers accused of adultery were not were not of good character and were hence unfit to raise children. This view was changed over time, and it was held that parents accused of adultery will not be deprived of the custody of the child. It was held that adultery would have no bearing on the welfare of the child.  While gender had nothing to do with the offence of adultery, women were considered to be of worse character than men and thus they were not given their rights.
In the case of Portnoy v. Strasser  where the custody of the children was contested between the natural mother and the grandmother, the court awarded custody to the grandmother on the grounds that the natural mother was of questionable character having remarried a man of a different race. This perception was later changed many years later where the U.S Supreme Court held that such prejudices should not creep into decision making.  We can see that even though race could not have had an impact on the welfare of the child, the judges bias against a particular race made him perceive the woman to be of a bad character.
In several other cases, religion has operated as a bias. For example in the case of A.B. v. C.B.  where the mother of an illegitimate child sought to revoke consent for the adoption of the child, the court looked at the religious sensibilities of the parties to determine their character. It was held that the mother of the child was not a practicing catholic and that she herself was an illegitimate child. The adoptive parents on the other hand were perceived to be of good character as they were practicing Roman Catholics, and hence custody was granted to the adoptive parents using the best interest principle.
Similarly in another English case, Helen Skinner v. Sophia Evelina Orde,  where an English lady residing in India, who lost her husband during the sepoy mutinies of 1857, sought to convert to Islam in order to become the second wife of an Indian Muslim man, her conversion was deemed to be immoral and the custody of the child was taken away from the mother. Distrust towards another religion and the coloured views of the judge on religion lead to the branding of the woman as a person of bad character.
Through this paper it is clear that limiting the circumstances under which character evidence may be introduced in civil cases is a step in the right direction. The last section shows that it is difficult to appreciate character evidence objectively as one’s views in society will always be coloured by the trends prevalent in society at that given time. This leads to situations wherein a person having a good case on all other fronts losing because society at that point in time perceives him to be of bad character.
We cannot however completely do away with character evidence in civil cases as there are several instances where the character of a person itself becomes a fact in issue. In such situations character will have to be looked into. However while dealing with these cases the courts should be aware of the prejudices that exist in society and tread carefully.
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