Chapter 26 - Evidence to Prove Character as an Element

Question 1

Name 2 situations in which an individual’s CHARACTER is an essential element of the claim or defense.

Answer 1

1. Defamation claim –> Truth is a defense for libel

2. Child Custody Claim

Question 2

2 Ways to prove character.

Answer 2

1. With reputation and opinion evidence

2. Evidence of Specific Acts

Question 3

1 Limitation on proving character & its policy

Answer 3

The Rules of Evidence prohibit evidence of SPECIFIC ACTS to prove the untruthful character of a witness bc that evidence would distract the jury from the parteis’ central dispute.

Question 4

The RULE that states that ALL RELEVANT evidence is admissible UNLESS otherwise provided, & evidence used to prove an element of the case easily meets the relevance definition of RULE 401

Answer 4

RULE 402

Question 5

This RULE only prohibits character evidence when it is used to suggest that a person acted consistently with their character on a particular occasion. –> This rule does NOT affect the admissibility of evidence proving character as an element.

Answer 5

RULE 404(a)

Question 6

The 2 RULES that restrict the types of evidence used to prove the character of a WITNESS.

Answer 6

RULE 608 & RULE 609

Question 7

This RULE outlines the permissible ways to prove character as an element of a crime, claim, or defense.

Answer 7

RULE 405

Question 8

What are the 2 ways RULE 405(a) allows a party to prove the relevant character trait?

Answer 8

1. Through opinion or reputation evidence.

2. On cross-examination of a character witness about specific acts.

Question 9

RULE 405(b) states that when character is an essential element of a crime, civil claim, or defense, the Rules of Evidence do NOT limit parties to opinion or reputation testimony. In ADDITION to those forms of proof, the parties may introduce what on direct and cross-examination?

Answer 9

Specific Evidence demonstrating the disputed character.

Question 10

What are the 2 steps to setting the foundation for opinion or reputation testimony?

Answer 10

1. First, the examining attorney must establish that the witness KNOWS the person whose character is at issue OR knows that person’s reputation.
2. Second, the witness will offer a brief OPINION or REPUTATION REPORT about the person’s character.

Question 11

If a party uses opinion or reputation testimony to show a character trait, RULE 405(a) allows the opponent to ____ the witness about _____ related to that character trait with a ____.

Answer 11

1. Cross-Examine
2. Specific Incidents
3. Good Faith Belief

Question 12

Although other rules may limit 405, the most important limit is what RULE? How does this RULE limit 405?

Answer 12

RULE 403: limits a party’s ability to offer character evidence. Even when character is a centrally disputed element of the case, a judge may exclude some types of character evidence b/c the danger of confusion, delay, or unfair prejudice substantially outweighs any probative value.

Question 13

The most difficult issue that arises in applying RULE 405(b) is?

Answer 13

Determining whether character truly is an element of the controversy.

Question 14

What are the 4 types of cases where character is usually an essential element?

Answer 14

1. Defamation Cases
2. Child Custody Cases
3. Entrapment Defense: requires D to prove that she lacked a predisposition to commit the crime. D’s criminal or noncriminal character is an essential element of the defense.
4. Negligent Entrustment Claims: an injured P argues that D carelessly entrusted a car, gun, or other potentially dangerous instrument to a person that D had reason to know would misuse that instrument. P argues that D knew something about a 3rd party’s character AND negligently ignored that knowledge.