10 - Character Evidence

Question 1

Character Evidence

Answer 1

• Notion of propensity or disposition proof
• 404(a) governs the circumstantial use of character evidence - the admissibility of evidence of a character trait to prove that a person acted in accordance with that trait on a particular occasion.
• Generally inadmissible 404(a) (accused character) and (b) (victim’s character)

Question 2

Exceptions allowing character evidence

Answer 2

1. A crim D’s character AND
2. A victim’s character in self-defense cases when offered by the accused
3. A witness’s character is limited to impeachment (ie character for untruthfulness).

• Rape Shield law - limit’s use of victim’s character in sex offenses

Question 3

3 Methods of Proof 405(a)

with a rule 404(a) exception

Answer 3

1. Reputation
2. Opinion
3. Specific acts

ex. to determine somebody’s honest character at law school, could ask
1. about that person’s reputation for honesty
2. ask someone who knows that person well (opinion)
3. ask about that person’s conduct - e.g., person found a wallet filled with money and returned it to the owner

because of SPECIFIC ACTS -> people form OPINIONS -> and collective opinions become REPUTATION

• specific acts may be most proactive, but takes most time and carries potential for distraction (party could contest specific act -> counter proof -> trial within a trial)

Question 4

Character in issue - 2nd use of character evidence

Answer 4

• Rare instances where character is an element in cause of action, crime, or defense
• specific instances of conduct may be used o establish character

Question 5

Other-acts evidence 404(b)

Answer 5

Provides that evidence of other crimes, wrongs, or acts, although not admissible to prove character, may be admissible for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident

Question 6

Habit evidence 406

Answer 6

• Generally admissible

Question 7

Reputation Evidence (method of proving character)
- Foundational Requirements

Answer 7

a method of proving character

• witness’s qualifications to testify about a person’s reputation in the community i.e. where they live, work, go to school
• Reputation is known at time of charged offense not trial

Question 8

Opinion Evidence

- Foundational Requirements

Answer 8

• Person who is sufficiently acquainted with the accused or victim, may give a personal opinion about that person’s character
• show that the witness is sufficiently acquainted with the accused or victim to have formed an opinion about that person’s character
• Fed courts divided on expert testimony (psychiatrist)

Question 9

Specific instances reflecting character

Answer 9

• ex. evidence that a person returned lost money on previous occasion would be relevant in ascertaining that person’s character for honesty
• Strongest evidence, but prohibited by 405(a) when character is admitted under 404(a)(1) or (2)
• can be raised on cross-examination

Question 10

Accused character (crim) 404(a)(2)(A)

Limitations (3)

Answer 10

• accused may offer evidence of a pertinent trait of their character BUT after opening the door, prosecutor may cross -examine the defenses’ character witness on the issue and offer rebuttal character evidence

1. D’s character only at the time of the charged offense is relevant
2. 405(a) limits the method by which the accused may introduce character evidence (only opinion and reputation NOT specific instances)
3. In sex offenses cases, special provisions 412-15

Question 11

Personal history

Answer 11

• Defense can bring forth positive character evidence during examination of accused or defense witness but this triggers the prosecution’s right to rebut
  
  • Prosecution cannot insinuate the subject into evidence on cross-examinaiton and then attempt to rebut

Question 12

Exception to 404(a)(2) - Pertinent Trait

Answer 12

• Accused can introduce evidence of a pertinent triat of character (relevant tot eh crimes charged e.g. peaceful in crimes of violence; honest for theft; and trutherful for perjury
• Fed cases also allow “law-abiding” character BUT into of this is double-edged sword
• Pros rebuttal evidence for character trait of honesty is limited to dishonesty (evidence for violence is not relevant as rebuttal)
• Pros can rebut with evidence of unlawful conduct like convictions only if defense introduced law-abiding evidence

Question 13

Form of questions for witnesses

Answer 13

• “Have you heard” - cross-examination of reputation witness

- “Did you know” - opinion witness

Question 14

Accused’s Character in Sex Offense Cases (413-15) - SEXUAL ASSAULT

Answer 14

413 - if accused of sexual assault case, this rule allows the introduction evidence of other sexual assaults - PROPENSITY evidence is admissible and not just limited to that kind of evidence (any that is relevant)
- method: can use opinion, reputation, and specific instances (don’t need to result in conviction)

Question 15

Accused’s Character in Sex Offense Cases (413-15) - CHILD-MOLESTATION

Answer 15

• victim must be under 14 (414)

- 414 eliminates 413 requirement that the alleged sexual contact has occurred without consent

Question 16

Accused’s Character in Sex Offense Cases (413-15) - CIVIL SUITS

Answer 16

• 415 addressses admiss of accussed other sex offenses in civil cases
• johnson v. Elk Lake School - court upheld exclusion of evidence

Question 17

Victim’s Character in Self-Defense Cases 404(a)(2)(B) only in crim

Answer 17

• only allowed in homicide and assault
• pros can’t intro evidence of victim’s character until defense opens the door

First aggressor issue - D may intro evi of victim’s violent character (pertinent trait) to show they were the first aggressor - estab 1 element of self defense
- after ev of vic’s charc intro by accused, pros can rebut for ex peacefulness AND with ev of accused’s ex violent character

Question 18

Special Homicide rule

Answer 18

• Any evidence that victim was first aggressor in homicide triggers the prosecution’s right to introduce rebuttal evidence of victim’s peaceful character
  ex. if accused testifies of victim being first aggressor but doesn’t intro character evidence - prosecution may introduce evidence of peaceful

Question 19

Rape Shield Law 412
________________
3 Exceptions

Answer 19

• Trumps 404(a) crim and civil
• excludes evidence of the victims other sexual behavior or sexual disposition
  __________________
  1. Source of Semen, Pregnancy, or Disease - 412(b)(1)(A) - excepts evidence of specific instances of the alleged vitim’s sexual behavior when offered to show that another person was the source of the semen, injury, or other physical evidence (pregnancy or disease)
  2. Past Sexual Activity with Accused - 412(b)(1)(B) - excepts evidence of specific instances of sexual behavior involving the accused and the alleged victim. When offered by accused, this exception is limited to the issue of consent
  3. Constitutionally-required - examples: shield laws that exclude evidence have been found to violate 6th amend rights, to show motive (also related to procedure and sanctions violating con rights)
  4. Civil cases ex. harassment - reverse Rule 403 - must substantially outweigh danger of harm to victim/unfair prejudice

Question 20

Character as Element of a Cause of Action or Defense

Answer 20

• If character is element of a crime, action, or affirm defense, prohibition of 404(a) does not apply and char must be proved
  
  • Can prove with specific instances/acts 405(b)
• Character in issue evidence is rare
  
  • ex - negligent entrustment - entrusting incompetent (character trait) is an element of the cause of action
  • ex - defemation - if p sues d for def because d called p a “liar,” d can raise “truth” as a defense - so character for truthfulness is an element of the defense and requires proof