Chapter 28 - Character Evidence to Show Propensity in Criminal Prosecutions

Question 1

What is the “Mercy Rule”?

Answer 1

1. Both constitutional doctrine & common law support the principle that criminal defendants should have as much latitude as possible to present a defense.
2. If a criminal D believes that proof of his good character, OR of an alleged victim’s bad one, would help defend his innocence, then the mercy rule weighs in favor of the D presenting this evidence.

Question 2

The Mercy Rule allowed the common law to develop a series of exceptions to the no-propensity rule; those exceptions allow what?

Answer 2

Criminal Ds to introduce SOME types of character evidence for propensity purposes.

Question 3

To maintain a fair balance in the adversarial process, courts also allow prosecutors to use character evidence to make propensity arguments, usually in situations where?

Answer 3

In situations where they are responding to Ds use of propensity evidence.

Question 4

RULE 404(a)(2)’s exceptions apply ONLY to what type of cases?

Answer 4

Criminal

Question 5

RULE 404(a)(2)’s exceptions apply ONLY to what type of character traits?

Answer 5

“Pertinent”

Question 6

RULE 404(a)(2)’s exceptions allow proof about who’s character?

Answer 6

1. Defendant’s Character

2. Alleged Victim’s Character

Question 7

RULE 404(a)(2) distinguish between when the ____ may introduce these types of evidence and when the _____ may do so.

Answer 7

Defendant / Prosecutor

Question 8

Type of Character Evidence 1: Pertinent Trait of the D

a) When may the D Offer this Evidence?
b) When may the Prosecutor Offer this Evidence?

Answer 8

a) Any time.
b) To rebut the character evidence of the same trait offered by the D, OR to match character evidence that the D offered about the alleged victim.

Question 9

Type of Character Evidence 2: Trait of Peacefulness of Alleged Victim

a) When may the D Offer this Evidence?
b) When may the Prosecutor Offer this Evidence?

Answer 9

a) Not applicable: D would not introduce this evidence.
b) In a homicide case: To rebut any evidence that the alleged victim was the first aggressor. OR In other Cases: To rebut character evidence that the victim was not peaceful.

Question 10

Type of Character Evidence 3: Other Pertinent Trait of Alleged Victim

a) When may the D Offer this Evidence?
b) When may the Prosecutor Offer this Evidence?

Answer 10

a) Any time, UNLESS barred by RULE 412 (the rape shield law)

b) ONLY to rebut evidence of the same trait offered by the D; evidence must comply w/ RULE 412 (the rape shield law)

Question 11

What are the 2 limits on the defendant’s ability to introduce evidence?

Answer 11

1. The evidence must relate to a “pertinent” character trait

2. The evidence must comply with RULE 412, the rape shield law

Question 12

The Prosecutor may introduce character evidence under these exceptions ONLY ______.

Answer 12

IN RESPONSE TO an action taken by the defendant.

Question 13

The Prosecutor may respond in what 3 ways in response to an action taken by the defendant?

Answer 13

1. If D offers character evidence about herself, the prosecutor may rebut that evidence with proof that D lacks that trait or holds the opposite one.
2. If D introduces character evidence about the alleged victim, the prosecutor may rebut that evidence by showing that the victim lacked that trait or held the opposite one, AND the prosecutor may ALSO introduce evidence that D held the trait that D attributes to the victim.
3. In a HOMICIDE case, the prosecutor may offer evidence that the deceased victim was a PEACEFUL person to ANY evidence that the deceased was the first aggressor / The prosecutor does NOT have to wait for the accused to introduce character evidence; the government may respond to ANY evidence that the deceased attacked first

Question 14

4 Examples of 404(a)(2)(B) “Pertinent” Character Traits

Answer 14

1. Homicide: To support D’s self-defense claim, D offers evidence of Ps VIOLENT Character.
2. D’s Peaceful Character: in a prosecution charging assault, battery, homicide, or other violent acts.
3. D’s Honest Character: in a prosecution for fraud.
4. D’s Aversion to Risk & Gambling: in a gambling prosecution.

Question 15

The Prosecutor can only offer evidence that is?

Answer 15

That is raised by D first. P CANNOT raise pertinent evidence if D has not offered that particular character trait first.

Question 16

In a homicide case, if D claimes that the alleged victim was the FIRST AGGRESSOR for SELF-DEFENSE, the prosecutor can do what under RULE 404(a)(2)(C)?

Answer 16

The Prosecutor may introduce evidence of the victim’s PEACEFUL character regardless of whether D used Character Evidence to raise the issue.