Keeping The Door Closed On Bad Acts Character Evidence
Character Evidence Generally
NRS 48.045(1) governs the admissibility of character evidence in a criminal trial:
1. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(a) Evidence of his character or a trait of his character offered by an
accused, and similar evidence offered by the prosecution to rebut such evidence . .
Further limiting the admissibility of character evidence is the Collateral Fact rule codified by NRS 50.085(3). Under this rule it is improper to allow the State to impeach a defendant’s credibility with extrinsic evidence relating to a collateral matter. Collateral facts are facts that are outside the controversy, or are not directly connected with the principal matter or issue in dispute.
In Jezdik v. State, 110 P.3d 1058 (2005), a case involving allegations of fraudulent use of a credit card and identity theft, the Nevada Supreme Court adopted the “specific contradiction” exception to the collateral fact rule of NRS 50.085(3). The exception holds that a defendant’s false statements during direct examination open the door to the admissibility of remedial specific contradiction evidence. At trial, Defendant took the stand and testified. His attorney asked, “Have you ever been accused of anything prior to these current charges?” to which Jezdik answered, “No.” As a result, the court allowed the state, in its rebuttal, to introduce testimony from two witnesses: A detective who testified that Jezdik was the subject of an ongoing unrelated investigation, and Jezdik’s father-in-law who testified that Jezdik had once admitted to using his personal information to open a credit card.
In affirming the trial court’s decision to admit the testimony of the state’s two witnesses on rebuttal, it distinguished Jezdik’s situation from one in which a defendant elects to introduce character evidence in the form of either reputation or opinion evidence. In the latter, the State is correspondingly limited in its rebuttal evidence and may only ask about specific acts on cross examination. The court determined that is not what happened in Jezdik’s case, but rather, that Jezdik’s testimony was essentially a denial of any prior specific instances of bad acts. Hence, Jezdik opened the door to the admissibility, by the state, of prior bad acts (uncharged or not) committed by Jezdik.
