Courts look with particular suspicion on character evidence, and a number of rules seek to confine that sort of evidence to its proper place. Two recent cases illustrate the problem. In State v. Braswell, No. COA25-286 (N.C. Ct. App. Jan. 21, 2026), The Court of Appeals applied Evidence Rule 608 and held the trial court erred by admitting evidence of the victim’s truthful character. In State v. Toomer, No. COA24-1102 (N.C. Ct. App. Feb. 4, 2026), the Court of Appeals applied Rule 609 and held the trial court erred by admitting evidence of a conviction more than 10 years old. This post considers the admissibility of character evidence in Braswell and Toomer.
Character Evidence under Rules 608 and 609
Rule 608 governs the admissibility of character evidence to impeach. A witness’s credibility may be supported or attacked by evidence in the form of reputation or opinion with two limitations. First, the evidence may refer only to the witness’s character for truthfulness or untruthfulness. Second, evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. N.C. R. Evid. 608(a). The latter provision was anticipated in pre-Rules cases. See State v. Stegmann, 286 N.C. 638, 647 (1975) (attack on victim’s credibility opened door to good character evidence), death sentence vacated, 428 U.S. 902 (1976); State v. Johnson, 282 N.C. 1, 26 (1972) (good character evidence was inadmissible absent attack on credibility).
Even after the adoption of Rule 608, however, “the necessity of impeachment as a prerequisite to corroboration has been more theoretical than real.” N.C. R. Evid. 608 cmt. Indeed, sufficient impeachment may consist of nothing more than evidence of contradictory statements. See State v. Marecek, 152 N.C. App. 479, 506, (2002) (defendant’s character impugned by evidence contrary to his statement to police); State v. Hall, 98 N.C. App. 1, 10 (1990) (victim’s character attacked by evidence of her prior inconsistent statements), rev’d on other grounds, 330 N.C. 808 (1992). To the extent Rule 608 was intended to “strengthen[] the limitation,” the caselaw shows decidedly mixed results. N.C. R. 608 cmt.; cf. State v. Caballero, 383 N.C. 464, 479 (2022) (defendant’s cross-examining witness about inconsistencies in testimony and prior statements was not attack on her credibility); State v. White, 340 N.C. 264, 296 (1995) (State’s evidence contradicting medical examiner’s conclusion as to cause of death was not an attack on his credibility).
Rule 609, by contrast, allows impeachment by evidence the witness has been convicted of a crime. Prior practice made any sort of criminal offense the subject of inquiry for the purpose of attacking credibility. N.C. R. Evid. 609 cmt. The current rule is narrower, allowing inquiry only into felonies and certain misdemeanors. Id. at (a). Still, the crime need not involve dishonesty. State v. Wilson, 158 N.C. App. 235, 243 (2003) (noting difference in federal rule). Evidence of a conviction more than ten years old is not admissible, however, unless (1) the proponent gives sufficient notice, and (2) the trial court specifically finds that the probative value of the evidence substantially outweighs its prejudicial effect. N.C. R. Evid. 609(b); State v. Hensley, 77 N.C. App. 192, 195 (1985).
The Court of Appeals has identified numerous factors relevant to the determination of whether evidence of a conviction more than ten years old should be admitted:
- the impeachment value of the prior crime,
- the remoteness of the prior crime,
- the centrality of the defendant’s credibility.
- whether the prior convictions involved crimes of dishonesty,
- whether the prior convictions demonstrated a continuous pattern of behavior, and
- whether the prior convictions were for crimes of a different type from that being tried.
State v. Joyner, 243 N.C. App. 644, 649 (2015); State v. Muhammad, 186 N.C. App. 355, 363 (2007). Crimes involving dishonesty are more likely to be admitted, as their probative value as to credibility is more apparent. E.g., State v. Powell, 921 S.E.2d 603, 608 (N.C. Ct. App., 2025) (prior fraud conviction); Joyner, 243 N.C. App. at 650 (prior convictions involved crimes of dishonesty).
State v. Braswell
The defendant in Braswell was alleged to have fondled a twelve-year-old girl, “Penny.” He was charged with taking indecent liberties, and the matter was tried by a jury in September 2024. Penny testified, and on cross-examination defense counsel sought to impeach her credibility, pointing out inconsistencies in her story, emphasizing her delayed disclosure, and questioning whether Penny was upset with the defendant for reporting that Penny’s mother had violated her probation. Based on this impeachment, the trial court allowed the State to present five witnesses who testified as to Penny’s good character for truthfulness. The defendant was convicted and appealed.
Before the Court of Appeals, the defendant argued the trial court erred by admitting evidence of Penny’s good character for truthfulness. The Court of Appeals agreed. Not all attacks on a witness’s credibility, it said, trigger rehabilitative evidence under Rule 608(a)(2). Braswell, Slip Op. p. 8. Finding little guidance in North Carolina law, the Court of Appeals cited federal caselaw for the proposition that “indirect” attacks on credibility – that is, methods tending to show the witness is a liar in general, such as evidence of a witness’s character for untruthfulness or of a prior conviction – trigger rehabilitative evidence under Rule 608(a)(2), whereas “direct” attacks on credibility – methods challenging whether the witness is being truthful in the instant case, such as pointing out inconsistences in prior statements – do not. Id. at 9-11. Eliciting evidence of bias, the Court of Appeals concluded, does not constitute an attack on a witness’s character for truthfulness. Id. at 11.
Here, the defendant’s cross-examination of Penny, asking about prior inconsistent statements and potential bias, implied that she was mistaken or lying only about the facts of the instant case. This did not trigger rehabilitative evidence under Rule 608(a), and the trial court erred by admitting the character evidence. Braswell, Slip Op. p. 14. Further, given the centrality of Penny’s credibility, the Court of Appeals found the defendant was prejudiced by the error, entitling him to a new trial. Id. at 16.
State v. Toomer
The defendant in Toomer had an altercation in his car with a woman he worked with at Taco Bell. The defendant was charged with second-degree kidnapping, assault on a female, assault with a deadly weapon, communicating threats, and habitual felon status. The case was tied by a jury in May 2024. The defendant testified, and the trial court permitted the State to cross-examine the defendant about his 1996 prior convictions for kidnapping and robbery, offenses more than ten years old. The defendant was convicted of felonious restraint and assault on a female and appealed.
Before the Court of Appeals, the defendant argued the trial court erred by admitting evidence of the prior convictions more than ten years old. The Court of Appeals agreed. Before admitting evidence of such convictions, the Court of Appeals said, the trial court must make findings of fact demonstrating the evidence’s probative value substantially outweighs its prejudicial effect – “and to explain how the conviction bears on the witness’s credibility.” Toomer, Slip Op. p. 13. Here, the trial court admitted evidence of the defendant’s prior convictions based on a finding that the circumstances of the prior offenses and the presently charged offenses were substantially similar. Id. at 12. This, the Court of Appeals explained, conflated Rule 609(b) with Rule 404(b), which permits evidence of other crimes if offered to prove something other than propensity. Id. at 12-13.
Cataloguing the trial court’s failure to consider the relevant factors (identified by caselaw), the Court of Appeals concluded the trial court’s findings of fact were insufficient. In particular, the trial court never explained how the defendant’s prior convictions “bore on his credibility.” Id. at 16. The trial court erred therefore by permitting impeachment based on the prior convictions. Id. But given other evidence of the defendant’s untruthfulness and overwhelming evidence of his guilt, the Court of Appeals concluded the defendant could not show the error was prejudicial. Id. at 19.
Conclusion
Braswell and Toomer both found error in the admission of evidence but for different reasons. The victim’s character was not at issue in Braswell, and it was thus error to admit character evidence in rebuttal. The defendant in Toomer placed his credibility at issue by testifying, but that did not permit the State to impeach him based on prior bad acts that had no bearing on his credibility.
A fascinating question not squarely addressed in either case is whether impeachment based on a prior conviction per Rule 609 triggers rehabilitation via good character evidence under Rule 608. Language in Braswell (arguably dicta) indicates that it would. Citing federal caselaw, the Court of Appeals said impeachment under Rule 609 “qualifies as an attack on a witness’s character for untruthfulness because ‘[t]he premise behind [this] rule is that a witness who has previously been convicted of a felony, or a crime involving dishonesty or a false statement, is more likely to lie than is a person with a spotless past.’” Braswell, Slip Op. p. 10 (quoting United States v. Norton, 26 F.3d 240, 243 (1st Cir. 1994)). Of course, the federal case was talking about the federal Rule 609, which (unlike the state rule) permits evidence of a conviction only for a felony or crime of dishonesty. Fed. R. Evid. 609(a)(2); cf. Wilson, 158 N.C. App. at 243 (noting difference with federal rule).
Taken together, Braswell and Toomer illustrate the complexity of the rules on character evidence. From the results alone it is tempting to conclude that character evidence is generally inadmissible. A more careful reading will not sustain that assessment. Indeed, the evidence was inadmissible in Braswell only because a precondition had not been satisfied (namely, an attack on the witness’s character for truthfulness), and in Toomer because the trial court failed to make sufficient findings relating the prior convictions to credibility. The proponents of character evidence should take note. Prosecutors seeking to offer evidence under Rules 608 and 609 are advised to ensure that the preconditions for admission are met, lest the evidence jeopardize any ensuing conviction on appeal.
