Often when a business professional is accused of a criminal offense, whether white collar or otherwise, the response is the same: “How could he do that.” The accused is a good employee, family member, and a participant in the larger community. The sentiment becomes “if only the court/jury could hear what a good person he is, they couldn’t believe the government’s allegations.”
This sentiment is common, but unfortunately there are hurdles to presenting evidence about someone’s good character in the fact finding (i.e. trial) portion of the Wisconsin criminal process. Character evidence is generally disfavored by the courts and this disfavor has been codified in Wis. Stat. 904.04.
There are some ways around the general exclusion of character evidence. Wis. Stat. 904.04(1)(a) allows for the character of the accused to be presented if it is a “pertinent trait.” Pertinent, or relevant, could be a number of things, but it must be directly relevant to the offense charged. For instance, in an embezzlement case where the defense is the accused did not “intend to steal” from the business, a pertinent trait could be the accused’s character for “honesty.” In a crime of violence like a domestic battery case, a pertinent character trait could be “peacefulness.”
Pertinent character traits can only presented to the court or jury in Wisconsin through “reputation or opinion” evidence. Thus, an accused business professional cannot present testimony about the specific good deeds he has done, say with the Milwaukee Rotary or his church. An accused can call a notable member of the community who can say things like “My opinion of Wisconsin Business Professional is that he is a very honest person.” However, this testimony is likely very short, and generally not overly persuasive.
Additionally, in Wisconsin courts any character evidence offered by the accused can be rebutted by the prosecution with examples of specific conduct. Therefore, if the notable community member says “My opinion for Wisconsin Business Professional is that he is very honest person” the prosecution can rebut by asking the notable person “would your opinion change if you knew that Wisconsin Business Professional had lied on his employment application, sold his neighbor a non-functioning lawn mower after representing it worked great, and claimed to have run a marathon in under 3 hours when it really took 4?” Thus, the government, if they are aware of specific examples that cut against the pertinent trait the accused is offering, can dissuade the accused from offering the character evidence by teeing up a brutal rebuttal.
Ultimately, the call whether to present favorable character evidence in a Wisconsin criminal trial must be evaluated on a case-by-case basis. An experienced Wisconsin defense attorney will know how and when to offer favorable character evidence on behalf of their client.