OUJI-CR 9-10


The defendant has introduced evidence of his/her character for (truth and veracity)/morality/chastity/honesty/integrity/(being a peaceful and law-abiding citizen). This evidence may be sufficient when considered with the other evidence in the case to raise a reasonable doubt of the defendant's guilt. However, if from all the evidence in the case you are satisfied beyond a reasonable doubt of the defendant's guilt, then you may find him/her guilty, even though he/she may have a good character.


Statutory Authority: 12 O.S. 1991, § 2404(A)(1).

Committee Comments

The character of a criminal defendant, demonstrable by proof of his reputation, may be proved in a criminal case in either of two distinct situations: (1) to prove circumstantially that, given his morality and personality characteristics, the defendant could not have committed the crime with which he is charged; and, (2) to parry an attack on his credibility when he takes the witness stand. In the former instance, the defendant initiates the character proof, which the prosecutor may rebut by presenting witnesses in rebuttal, or by cross-examining the defendant's witnesses. In the latter instance, the defendant is foreclosed from introducing proof of his character for truth and veracity until his credibility is attacked. This instruction is applicable only under circumstances described in the former instance: Character proof is presented as circumstantial evidence of innocence.

Proof that a litigant is a generally "good" or "bad" person is largely irrelevant to the proof of the precise issues which form the substance of the litigation. Section 2404(A), 12 O.S. 1991, § 2404(A), restates the common law rule which precludes the prosecutor from initiating proof of the defendant's bad character, but permits the defendant to demonstrate that he possesses certain good qualities in order to raise an inference of his innocence. The difference in treatment of the prosecutor and the defendant regarding the introduction of character proof inheres in the policy of avoiding the use of evidence which may result in unfair and undue prejudice to the defendant. Justice Jackson expatiated on the rule concerning character evidence as follows:

The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The over-riding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.

But this line of inquiry firmly denied to the State is opened to the defendant because character is relevant in resolving probabilities of guilt. He may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged. This privilege is sometimes valuable to a defendant for this Court has held that such testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt and that in the federal courts a jury in a proper case should be so instructed.

Thus the law extends helpful but illogical options to a defendant. Experience taught a necessity that they be counterweighted with equally illogical conditions to keep the advantage from becoming an unfair and unreasonable one. The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him .

Michelson v. United States, 335 U.S. 469, 475-76, 478-79 (1948) (citations omitted).

The Court of Criminal Appeals has long adhered to the rule articulated in Morris v. Territory, 1 Okl. Cr. 617, 99 P. 760 (1909), concerning instructions regarding character of the defendant. The "better and safe practice" is to instruct the jurors upon the issue of character proof; if not granted express recognition by the court, character proof by the defendant might be largely ignored. Refusal to instruct upon character evidence is error; whether the error is harmless or prejudicial depends upon review of all the facts and circumstances of the particular case. Pitman v. State, 487 P.2d 716 (Okl. Cr. 1971); Porter v. State, 361 P.2d 695 (Okl. Cr. 1961); Holcomb v. State, 95 Okl. Cr. 55, 239 P.2d 806 (1952); Stone v. State, 80 Okl. Cr. 124, 157 P.2d 468 (1945); Ware v. State, 71 Okl. Cr. 232, 110 P.2d 617 (1941); Tucker v. State, 66 Okl. Cr. 335, 92 P.2d 595 (1939); McCullom v. State, 22 Okl. Cr. 46, 209 P. 781 (1922); Holmes v. State, 6 Okl. Cr. 541, 119 P. 430 (1911); Wilson v. State, 3 Okl. Cr. 714, 109 P. 289 (1910).

There is some conflict in the Oklahoma decisions concerning the requisite content of the character-evidence instruction. In Kitchen v. State, 66 Okl. Cr. 423, 92 P.2d 860 (1939), the court espoused the theory that the jurors must be charged that evidence of good character, standing alone, may be sufficient to generate a reasonable doubt, and thus require acquittal. The trial court's instruction in Kitchen was to the effect that if, after considering all of the evidence introduced, including the character evidence, the jury had a reasonable doubt of the defendant's guilt, they should acquit; but if they were satisfied from all of the evidence that the defendant's guilt had been established beyond a reasonable doubt, they should find the defendant guilty. The court termed this instruction erroneous:

The vice of this instruction is that the jury were not clearly informed that good character may create a reasonable doubt as to whether such person would commit the crime charged, where otherwise no doubt existed, and that proof of good character may lead the jury to disbelieve the testimony against the defendant no matter how conclusive such testimony may be.

Id. at 430, 92 P.2d, at 864. A New York decision, People v. Elliott, 163 N.Y. 11, 57 N.E. 103 (1900), was cited in support of this rule, as were several early Oklahoma decisions. Carney v. State, 29 Okl. Cr. 83, 232 P. 451 (1925); Kirby v. State, 25 Okl. Cr. 330, 220 P. 74 (1923); Wilson v. Territory, 14 Okl. 436, 78 P. 124 (1904).

The Carney decision does not support the conclusion for which it was cited in Kitchen. In Carney, the court held only that evidence of good character is admissible, is to be considered by the jury in determining the defendant's guilt, and is a subject upon which the defendant is entitled to have the jury instructed. The opinion does not indicate what the content of the instruction should be. Similarly, the Kirby case is not supportive of Kitchen. In Kirby, the court held that, when a criminal defendant testifies and his testimony is contradicted only by the testimony of the State's witnesses, the defendant cannot introduce evidence of his good character for truth and veracity. The defendant's opportunity to have the jury consider his good character was limited to offering evidence of his good character as a peaceable and law-abiding citizen because his credibility had not been impeached. Finally, in Wells, the court did state proof of good character may suffice to raise a reasonable doubt of guilt, even though no doubt would otherwise exist. However, the court rebuffed the defendant's contention that a Kitchen-type instruction was appropriate, declaring that:

[E]vidence of good character can only be considered in connection with all the other evidence, facts, and circumstances appearing in the trial, and if, after considering all of the evidence, including that as to good character, the jury entertain no reasonable doubt of guilt, they should convict, and that notwithstanding the evidence of former good character.

14 Okl. Cr. at 458, 78 P. at 131.

Kitchen has not been cited on the issue of what instruction is required with respect to character. The conviction in that case was reversed on other grounds, so the language in the decision on the character instruction may be considered dicta.

The Commission has concluded that the character-evidence instruction need not contain language that character evidence, standing alone, may create a reasonable doubt where none otherwise existed. Phrasing an instruction in those terms creates the hazard that "the jury may mistakenly take it as an invitation to consider good character evidence to the exclusion of all other evidence." Smith v. United States, 305 F.2d 197, 206 (9th Cir.), cert. denied sub nom. Corey v. United States, 371 U.S. 890 (1962).

The Commission's conclusion is supported by Oklahoma decisional law that conflicts with Kitchen, of which Wilson v. State, supra, is exemplary. In Wilson, the court instructed the jury to the effect that evidence of the defendant's character could be considered by the jury with all of the other evidence and could be given such weight as the jury deemed proper in determining the defendant's guilt or innocence.

The defendant had requested that the jury be instructed that, if they found the evidence against the defendant to be equally divided, the evidence of his good character could be sufficient to result in an acquittal. The defendant's requested instruction also provided that the evidence of his good character should be considered "without regard to the apparently conclusive or inconclusive character of such other evidence, and although there may be sufficient other evidence to warrant a finding of guilt[.] [I]f the good character of the accused creates the reasonable doubt of guilt, then you should acquit the defendant." 3 Okl. Cr. at 717, 109 P. at 291.

In holding that the trial judge's refusal to give the defendant's requested instructions was not error, the court stated:

On principle it would seem that the very fact that the court admits the evidence as to the defendant's good character could not but be understood by the jury as a command to consider it; and it would seem, also, that when such evidence is admitted, and the court instructs the jury to acquit if, upon a consideration of all the evidence in the case they entertain a reasonable doubt of the defendant's built, that would be all that should be required. Be that as it may, however, we hold that it is sufficient in eases of this kind for the court to instruct the jury, in substance, that, if they believe from the evidence that prior to the alleged offense the defendant had the general reputation in his community of being a moral, law-abiding citizen, that they should consider that fact and give to it such weight as they deem proper in determining the question of the defendant's guilt or innocence; but if, upon a consideration of all the evidence in the case, including that bearing upon the defendant's good reputation, the jury nevertheless believes beyond a reasonable doubt that the defendant is guilty as charged, then his previous good reputation would constitute no justification or defense.

Id. at 717-18, 109 P. at 291.

In Ware v. State, supra, a later pronouncement by the Court of Criminal Appeals concerning the content of character instructions, the court approved an instruction directing the jury to consider character evidence "in connection with all the other evidence, facts and circumstances disclosed upon trial," while rejecting the defendant's contention that the jury should be instructed to consider "that evidence alone or that evidence taken in connection with all the other evidence in the case...." The court then declared, without citing Kitchen:

It is not the duty of the jury to acquit the defendant if, upon the consideration of the testimony as to the defendant's good character and reputation "alone" the jury has a reasonable doubt of the defendant's guilt. This evidence should be taken into consideration with all the evidence offered in the trial of the case, and if, after a consideration of all the evidence, together with that of the good reputation and character of the defendant, the jury has a reasonable doubt of the guilt of the defendant, it is their duty to acquit him. This evidence should not be considered "alone". This question has been discussed in the case of Wilson v. State.

71 Okl. Cr. at 237, 110 P.2d at 620 (emphasis added; citation omitted).

Section 2405 of the Evidence Code, 12 O.S. 1991, § 2405, sets forth alternate methods by which character may be proved: by the traditional means of summoning a witness to act as a spokesperson for the community and articulate for the fact-finder the reputation of a particular individual for possessing or not possessing a specific character trait; or by merely eliciting the subjective opinion of the witness regarding character. The character witness may be cross-examined by inquiry into that witness's knowledge of specific instances of conduct by the defendant which, if true, would tend to undermine the witness's opinion or report of reputation. Section 2405 provides in pertinent part: "Where evidence of a person's character or trait of character is admissible, proof may be by testimony as to reputation or by testimony in the form of opinion. Inquiry is allowable on cross-examination into relevant specific instances of conduct." 12 O.S. 1991, § 2405.

(2000 Supp.)