Maryland Court Of Appeals Holds Character Evidence Of Appropriateness With Children As Sometimes Admissible In Child Sex Abuse Cases

On August 18, 2020, in affirming the defendant’s conviction in Vigna v. State, the Maryland Court of Appeals held that a history of appropriateness with children in one’s custody or care may be admissible in sex abuse cases as a “pertinent trait of character,” within the meaning of Maryland Rule 5-404(a)(2)(A). Maryland Rule 5-404(a)(1), which governs character evidence, states that generally “evidence of a person’s character or character trait is not admissible to prove that the person acted in accordance with the character or trait on a particular occasion.” This Rule has exceptions, including for criminal cases, Maryland Rule 5-404(a)(2)(A), stating that “an accused may offer evidence of the accused’s pertinent trait of character. If the evidence is admitted, the prosecution may offer evidence to rebut it.” At trial, Mr. Vigna’s defense counsel sought to admit evidence that he acted appropriately in many interactions with children in his care, arguing this was “classic” reputation evidence, which should be admissible. The trial court refused to admit the evidence because the trait proffered was too “unique and specific and limited . . to be considered a character trait.”

The Maryland Court of Appeals, noting that this was an issue of first impression, surveyed law from other states, finding that the majority had held that appropriate interactions with children, sexual morality, and other formulations of traits related to sexual disposition, may be pertintent character traits, and therefore admissible in child sex abuse cases. The Court of Appeals explained that the fact that child sex abusers do not usually commit their crimes in view of others, is an unpersuasive argument for altogether excluding character evidence related to a defendant’s interactions with children. Excluding such character evidence on that basis would necessarily rely on the behavior of convicted child sex abusers to prevent an accused child sex abuser from introducing such character evidence, which would encroach upon the presumption of innocence. The Court of Appeals further explained that although the juries in many child sex abuse cases probably will not find reasonable doubt of guilt after hearing character evidence regarding a defendant’s appropriateness with children, it does not follow that there is no relevance to such character evidence. Highlighting the Court’s concern about eroding the presumption of innocence, it noted that “for an innocent teacher, coach, or other person occupying a position of trust,” “the ability to introduce opinion or reputation evidence from respected members of the community about the defendant’s appropriateness with children in his custody or care may not only be relevant but also crucial to avoid a miscarriage of justice.”

While the Court of Appeals clearly contemplated the relevance and admissibility of character evidence of a defendant’s appropriateness with children in child sex abuse cases, the Court held that a trial court confronted with this issue must conduct an individualized analysis to determine whether such evidence is admissible in the particular case before it. Technically, the Court set forth a three-part admissibility analysis, but it explained that the first factor - whether the quality identified is actually a “trait of character” within the meaning of Rule 5-404(a)(2)(A) - is generally satisfied for this type of character evidence. As such, when seeking to admit character evidence of appropriate behavior with children in a child sex abuse case, the trial court must evaluate on a case-by-case basis whether: 1) the trait of character is “pertinent” - i.e. if believed by the jury, it would make it less likely that the defendant committed the charged offense, and 2) its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. In Mr. Vigna’s case, the Court determined that this error in failing to admit the proffered character evidence was harmless beyond a reasonable doubt because Mr. Vigna presented testimony that he was law-abiding and truthful, which included witnesses who said they trusted him in the context of his interactions with children, effectively supporting the “trait” he sought to establish with the excluded evidence. Notwithstanding the harmless error analysis in Mr. Vigna’s case, this ruling by the Court of Appeals, requiring trial courts to seriously consider admitting evidence of appropriateness with children, will improve the ability of defendants charged with child sex abuse to present their cases more fully to the jury.

Nathans & Biddle LLP is a highly respected advocate for individuals and businesses involved in a broad spectrum of white-collar criminal and civil disputes, forfeitures, criminal post-conviction proceedings, and attorney grievance matters. With offices in Baltimore, Annapolis, and Greenbelt, we represent clients across Maryland (both federal and state courts), the Washington D.C. area, and several other federal courts across the country.

Follow this link for the full opinion in Vigna v. State, No. 55 (Sept. Term 2019): https://www.courts.state.md.us/data/opinions/coa/2020/55a19.pdf.

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