Chapter 6 Relevance: Character Evidence (Evidence Book p. 258-261).

Question 1

________ __________ is evidence of a person’s likelihood, or “propensity,” to act in conformity with a particular character trait.

Answer 1

Character Evidence

Question 2

Character evidence is evidence of a person’s likelihood, or “propensity,” to act in conformity with a particular character trait. Such evidence is generally ___________ because people should be judged in a court of law based on what they have actually done in the case, not on the mere likelihood of having done something just because they have a certain character trait, and may have acted in conformity with it. People should be judged on what they did, not on who they are.

Answer 2

inadmissible

Question 3

Character evidence can be admissible in certain situations. The character trait in question must always be a “_______” (relevant) character trait to the claim or charge at issue in the case.

Answer 3

pertinent

Question 4

In _________ cases, the defense may raise a good character trait of the defendant that is pertinent to the charge or defense at issue in the case (e.g., the defendant’s propensity for peacefulness in an assault case.)

The defense may also raise a bad character trait of the victim that is pertinent to the charge or defense at issue in the case (e.g., the victim’s propensity for violence in an assault charge/ self-defense case).

Answer 4

criminal

Question 5

In either a ______ or _______ case, either party may attack a testifying witness’s character for truthfulness (truthfulness is the only pertinent character trait of a witness in a case).

Answer 5

civil or criminal

Question 6

Only the ________ can raise the issue of his own character, meaning the ________ cannot be the first to attack the defendants character. FRE 404(a)(2)(A).

Answer 6

defendant

prosecution

Question 7

The defendant must be the one to raise the issue or open the door on his own character known as the _______ ______.

Answer 7

Mercy Rule

Question 8

The defendant must be the one to raise the issue or open the door on his own character known as the Mercy Rule. However, once the defendant opens the door on his own character, later in the trial, the prosecution can _____ ______ that door by attacking the character of the _________. As a result, a defendant may elect not to open the door on his character if the prosecution might have damaging evidence of the defendant’s bad character.

Answer 8

walk through

defendant

Question 9

Generally, only the ______ can raise the issue of the victim’s character (open the door), but there are differing consequences toddling so. FRE 404(a)(2)(B) & (C).

Answer 9

defendant

Question 10

The defendant can be the first one to raise the issue of the _______ bad character; however, once the defendant opens the door on the _______ bad character, the prosecution can walk though that door by supporting the good character of the victim. FRE 404(a)(2)(B)(i)

Answer 10

victim’s

victim’s

Question 11

Once the defendant opens the door on the victim’s bad character, the prosecution also can walk through that door by attacking the character of the defendant on that same trait. So, by attacking the victim’s character on a pertinent trait, the defendant opens the door on his own character on that ______ ______, even though the defendant did not put on any character evidence about himself. FRE 404(a)(2)(B)(ii).

Answer 11

same trait

Question 12

In a ________ case only, the prosecution can be the first one to raise the victim’s good character for _____________, provided the defendant has put on evidence that the victim was the “first aggressor” (e.g., that the victim “threw the first punch.” FRE 404(a)(2)(C).

Answer 12

homicide

peacefulness

Question 13

If Rule 404(a)(2)(A) and (B) character evidence is admissible, then under Rule __________ , the allowable method of proof is to call a witness who will testify as to either the defendant’s, or the victim’s, character trait(s).

Answer 13

Rule 405(a)

Question 14

FRE 405(a): A character witness for the defendant or the victim can testify either to the defendant’s, or to the victim’s
1.
2.

Answer 14

1. reputation in the community for a pertinent character trait;
2. in the witness’s opinion, the defendant or the victim possesses a certain pertinent character trait.

Question 15

FRE 405(a) On ______ _________ of a character witness, to test the credibility of that witness, the judge may allow “an inquiry” into relevant specific instances of the conduct of the person whose character is in question. This means that supporting testimony or proof about the specific instances themselves cannot be admitted at trial.

Answer 15

cross examination

Question 16

However, on cross-examination, such specific acts may be asked about if
1. ?
2.
3.

Answer 16

1. the attorney has a “good-faith” basis for asking the question (she cannot make up a specific instance to ask about.)

Question 17

However, on cross-examination, such specific acts may be asked about if
1.
2. ?
3.

Answer 17

2. the question addresses a pertinent character trait; and

Question 18

However, on cross-examination, such specific acts may be asked about if
1.
2.
3. ?

Answer 18

3. the judge allows the question in her discretion

Question 19

Under Rule ________, past crimes, wrongs, or acts of a person can be used, in either a criminal or a civil case, to prove something relevant other than the character or propensity of that person. Because the acts are by definition, not being used to prove character or propensity, but something else in the case, they are not subject to the method of proof requirements for character evidence under Rule 405. Note that Rule 403 might be used to exclude otherwise admissible non-character evidence.

Answer 19

Rule 404(b)

Question 20

The mnemonic “MIAMI COP” is a helpful way to remember the non-character, non-propensity purposes that can be used under Rule 404(b):

Answer 20

Motive
Inent
Absence of Mistake
Identity
Common plan or scheme
Opportunity
Preparation

Question 21

Past crimes of the defendant with a criminal syndicate show an ________ to commit a robbery, with the criminal group, and demonstrate a lack of duress, to show that the defendant actually was not coerced to commit the robbery for which she was charged.

Answer 21

Intent

Question 22

Past crimes must be sufficiently unique in their nature and operation to be able to identify the defendant as the one who must have committed the current charged crime because the current crime is sufficiently unique and similar to the previous crime that we know the defendant committed. As a result, it can be used to identify the defendant and revel his similar plan or modus operandi.

Answer 22

plan and identity

Question 23

Character evidence is admissible in a criminal case, or in a civil case, if character is an _________ ______ of a charge, claim or defense.

Answer 23

essential element

Question 24

Character is an _____ ________ when, for example, truth is a defense in a libel case, parents fitness is an issue in a child custody case, or to attack or support the character of someone in negligent hiring or negligent entrustment case.

Answer 24

essential element

Question 25

If character is essential (meaning that it must be proved as a ______ _______), then that character evidence will be admissible, in all three forms
1.
2.
3.

Answer 25

legal element

1. reputation
2. opinion
3. specific instances of conduct

Question 26

Under FRE 412, in a sex offense case, the defendant cannot open the door on the victim’s character for “sexual behavior” or “sexual predisposition.” So, the defendant cannot use the victim’s reputation, or use an opinion about the victim, in these circumstances. True or False.

Answer 26

True

Question 27

Under Rule 412(b)(1)(A)(B) & (C) specific instances of victim’s past are admissible
1. ?
2.
3.

Answer 27

1. to prove someone other than the defendant was the source of semen or injury

Question 28

However, on cross-examination, such specific acts may be asked about if
1.
2. ?
3.

Answer 28

2. to show that the victim had prior consensual sexual contact with the defendant, if consent with the defendant is the defense at trial and

Question 29

However, on cross-examination, such specific acts may be asked about if
1.
2.
3. ?

Answer 29

3. to ensure that excluding such evidence would not violate the Constitution

Question 30

Under rule 412(b)(2), in ________ cases involving any sexual misconduct, evidence of the victim’s past sexual behavior or predisposition is admissible against the victim, provided that the probative value of the evidence substantially outweighs its unfair prejudice (it must satisfy a “reverse” 403 balancing test. Evidence of the victim’s reputation is admissible only if the victim has placed it in controversy.

Answer 30

civil

Question 31

If the defendant is chard with _____, _____ ______, or ________ ______, the prosecution does not have to wait for the defendant to open the door on his good character. Instead, the prosecution can attack the defendants bad character by showing evidence of the defendant’s commission of another offense or offenses of sexual assault (this means extrinsic evidence of specific instances of conduct are admissible against the defendant in these circumstances, without the defendant first having to open the door on his own character.

Answer 31

rape, child molestation, or sexual assault

Question 32

Under rule ______, habit evidence of an individual, or the routine practice of an organization, is admissible. However, to qualify as a habit, the action in question must be a specific, narrow, non-violational, automatic response to a repeated set of circumstances.

Answer 32

406

Question 33

__________ or ________ practice is admissible because it is considered more reliable than character evidence. It is also unlike character evidence because it can have many possible manifestations (e.g., being violent can be exhibited in many different ways), whereas a habit has only one specific manifestation (e.g., every morning a person drinks a cup of coffee when she first arrives to work). Be careful of character evidence masquerading as habit evidence in an attempt to make it admissible. For example, one cannot be in the “habit” of being careful, or negligent, or violent, as those are all really character traits.

Answer 33

Habit

Routine