Is absence of criminal record admissible character evidence?

[CASE] A passenger's dispute with a bus driver led to police involvement, during which the passenger cursed and struck an officer. She was convicted of third-degree assault, obstructing a police officer, and resisting arrest. On appeal, she argued that the trial judge erred in excluding evidence that she had no criminal history. Division 2 affirmed. State v. Mercer-Drummer, --- P.3d ---, 2005 WL 1743891 (Wash. App. July 26, 2005) (published in part), Find Result - 2005 WL 1743891.

Rather than offering testimony from another witness that she was a "law abiding citizen," Mercer-Drummer attempted to testify herself to the absence of an arrest record. ER 405(a) requires the proof be by evidence of reputation. The trial court correctly excluded Mercer-Drummer's testimony based on this clear requirement.

In the unpublished part of the decision, the court addressed an argument that the officer who testified impermissibly expressed an opinion as to Mercer-Drummer's guilt. In describing the incident, the officer testified "That's when I was assaulted" and, later, "we're just trying to get her in cuffs, in custody, basically - for one, I was just assaulted." The court concluded that the officer's use of the word "assault" was merely descriptive and did not constitute an opinion as to the defendant's guilt with respect to the charge of "assault."

Judge Bridgewater dissented:

I respectfully dissent. The majority follows the opinion in State v. O'Neill, 58 Wash.App. 367, 793 P.2d 977 (1990), in upholding the trial court's decision to exclude the testimony by the defendant as to her good character. I would follow the well-reasoned dissent in O'Neill because I agree that "the character of being law abiding is pertinent to rebut any criminal charge." * * * I agree that a "criminal defendant has a constitutional right to testify in his own defense as to his character for law abidingness as incident to his Sixth Amendment rights under the United States Constitution and article 1, section 22 of our constitution." * * * I would reverse and remand for a new trial.