(3) Evidence: Character Evidence & Habit/Routine Flashcards
What rule is Character Evidence Subject to?
FRE 403/CEC 352
Overall Rule
Character Evidence
Character evidence is not admissible when it is used to prove a party’s conforming conduct, however it is admissible when character is an essential element of the claim or defense (ex. Defamation, child custody, impeachment)
Examples of claims where character is an essential element
Character Evidence
Defamation, Child Custody, Impeachment.
General Rule & FRE/CA difference:
Exceptions to Character Evidence
Overview
Character evidence may be used to show a person acted in conformity with the character trait (in a criminal case) when:
1. Defendants Character in Criminal Cases
2. Victims Character in Criminal Cases
3. Victims Character in Homicide Cases
4. Victims Character in Sexual Offense Cases
Under FRE there is no exception for civil cases except for sex-offense cases. In CA there are no exceptions for civil cases.
General Rule & CA differences:
Defendants Character in Criminal Cases
Character Evidence Exception
A D may introduce evidence of their own character, but this opens the door to the prosecution being able to present evidence of the D’s bad character for the same trait.
In CA the prosecution can initiate character evidence showing a D’s acts of domestic violence or elder abuse.
General Rule & CA Differences:
Victims Character in Criminal Cases
Character Evidence Exception
A D may offer evidence of the victims character to prove the D’s innocence.
If the D presents such evidence the prosecution may present evidence of (a) the victims good character for the same trait; or (b) D’s same bad character trait.
In CA it is limited to only violent character trait.
FRE Rule ONLY:
Victims Character in Homicide Cases (FRE)
Character Evidence Exception
The prosecution may present evidence of the victims character for peacefulness ONLY if the D claims the victim was the aggressor (self-defense).
In CA no such rule exists.
Rule & Exceptions:
Victims Character in Sex Offense Cases
Character Evidence Exception
In sexual misconduct cases, evidence offered to prove a victims sexual behavior or predisposition is generally NOT admissible.
However the following are exceptions in criminal cases: (a) evidence of specific instances of a victims sexual behavior if offered to prove the D was not involved in the sex crime; (b) evidence of sexual relations between the D and victim if offered by the D to prove consent or by the prosecutor for any reason; OR (c) evidence whose exclusion would violate the D’s constitutional rights.
Methods to Prove Character Evidence (FRE)
Direct Examination - “Opinion Testimony” and “Reputation Testimony” of how they are in the community. Community is the people who engage with them on a regular basis.
Cross Examination - Option, Reputation or Specific Act testimony is allowed.
Methods to Prove Character Evidence (CA)
D’s Character may be proven by opinion or reputation.
Victims Character may be proven by opinion, reputation or specific acts.
Prior Bad Acts (MIMIC)
Character Evidence
Evidence of prior bad acts is not admissible to show propensity (that a person acted in conformity with a character trait). However evidence of prior bad acts are admissible for the following other relevant non-propensity purposes such as proving:
- Motive
- Identity
- Absence of Mistake or Accident
- Intent
- Common Plan of Scheme (criminal signature)
- Opportunity
- Preparation
Note: Admissibility is subject to FRE 402/CEC 352 – the balancing test
Rule:
Habit/Routine
Evidence of a persons habit or an organizations routine is admissible to prove the person or organization acted in accordance with the habit or routine practice. The evidence may be admitted without corroboration and without an eyewitness.
Define:
Habit
A habit is a regular response to a repeated situation.
The exam will usually use words such as “always” or “every time” – “often” or “frequently” is in reference to character evidence.
