Reputation mostly consists of accumulation of hearsay evidence about what a person’s character is generally believed to be instead of what it actually may be. It may be based on rumour and conjecture and may also be a prejudiced opinion.
When such evidence is tendered with respect to facts in issue, it is not considered to be hearsay evidence, as the reputation of the person is the fact in issue. However when reputation is looked at as circumstantial evidence to draw an inference with respect to another fact, it is considered to be testimonial evidence where the community expresses an opinion on the reputation of a person, and this is admissible as an exception to the rule of hearsay. [9]
Since in the latter cases, reputation is used as an exception to the hearsay rule, it is allowed only in cases where it takes a solid and definite shape so as to justify its acceptance. Mere rumours are not accepted, what is accepted though is the general estimate of the entire community, not what a few people might say. If the public opinion is decidedly divided, it may not be relied upon. This restriction however is difficult to observe as reputation is a subjective term, and there will always be people who differ from others in their opinion about a person’s character. It is difficult to find unanimity. [10]
In recent years however, the focus has shifted towards the accused’s disposition to behave in certain ways, previous convictions etc. as more reliable evidence of character. [11]
The Distinction Between Character Evidence in Civil and Criminal Cases
When the character of a person is the fact in issue, proof of general character may be received in both civil and criminal cases, however when the character is not a fact in issue, but is instead used as circumstantial evidence to prove other material issues, then it is allowed only in criminal cases, and under certain circumstances in civil law. [12]
This is true of both English law as well as Indian law, Section 52 of the Indian Evidence Act makes it clear that evidence of character to prove conduct imputed is irrelevant unless it appears from the facts to be otherwise relevant. Thus the test for admissibility is relevance.
The same is applicable to English Law. This was first explained in Attorney General v. Radloff where it was observed that in criminal cases, evidence of the accused’s good character was admissible as there was a just presumption that a person of good character would not commit a crime. It was further stated that in civil cases, such a presumption would not arise as the nat
