Character Flashcards
What is the process for propensity evidence in a criminal case?
Rule 404(a)(1) - evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character trait.
Some exceptions and the same evidence can be brought in for other purposes.
What are the four categories of character evidence?
1) Proof of a Witness’s propensity to lie or tell the truth
2) Proof of conduct by Propensity
3) Proof of character or reputation as elements
4) Proof of other acts for non-propensity purposes
What is the rule when proof of character or reputation in an element of the case?
When character is an element, proof is not limited to reputation/opinion testimony. Extrinsic evidence is allowed.
• Relatively rare for character to be an element of a case, but there are some.
○ E.g. defamation, child custody, entrapment, or negligent entrustment.
What is the rule regarding proof of conduct by propensity?
Not allowed under 401(a)(1) - Cannot use propensity evidence to show that the person acted a certain way.
E.g. - neighbor accused of theft. Cannot bring in witnesses to testify that the defendant “would steal anything he could get his hands on.”
What are the three exceptions to the propensity rule?
- Defendant may offer evidence of his pertinent trait. If admitted, the prosecutor may offer evidence to rebut it.
- Defendant may offer evidence of an alleged victim’s pertinent trait
- In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
* Allows the defendant to introduce evidence about his character or the victim's character. * Trait must be pertinent * Prosecutor may respond, but cannot initiate * Cannot use specific acts to back up the opinion testimony
What is the rule for proof of other acts for non propensity purposes?
Rule 404(b) - (one of the most frequently litigated rules. Real contest of wits and very high stakes)
1) Evidence of crimes is not admissible to prove a person's character or to show that the person acted in accordance with the character on a particular occasion. 2) This evidence may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, etc… On a criminal defendant's request, the prosecutor must a. Provide reasonable notice of the general nature of any such evidence the prosecutor intends to offer at trial, and b. Do so before trial, or during trial if the court, for good reason, excuses lack of pretrial notice.
What is the rule for a evidence of a habit?
Evidence of a person’s habit or an organizations routine practice may be admitted to prove that on a particular occasion they acted in accordance with the habit or routine practice. Court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Rule 406
What is the difference between habit and propensity?
- Propensity refers to a person’s character or nature, and assumes that there is something about this character that influences the actions. Assumes conscious choice.
- Habits are repeated actions that do not refer to the person’s character. Regular actions regardless of inner character. Not based on thoughts or morality.
- No clear line distinguishing the two. Must make the argument.
What factors are considered for habit?
○ Specific conduct
○ In distinctive situations - happens in particular circumstances.
○ On a regular basis
○ With lack of moral overtones
What is the Rape Shield rule?
Not allowed to offer evidence involving sexual misconduct if offered to prove that a victim engaged in other sexual behavior, or to prove a victim’s sexual predisposition.
• Applies only to trials involving sexual misconduct.
Propensity is still not allowed. Most courts will find that a victim cannot testify that she was a virgin as this is a propensity argument.
What are the exceptions to the rape shield law?
• Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of the semen, injury, or other physical evidence; or
• Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct if offered by the defendant to prove consent, or if offered by the prosecutor.
○ Statements about wanting to have sex with the defendant will be admitted under this exception
What is the rule regarding evidence of specific instances of a victim’s sexual behavior in civil cases?
412(b)(2) - In civil cases, the evidence is excluded unless the probative value substantially outweighs the danger 1) of harm to any victim, and 2) of unfair prejudice to any party.
• For work-place claims, an important factor is whether the victim’s actions occurred at work, or outside the workplace.
What are the 7 key points for preliminary questions?
1) Judge resolves preliminary questions
2) Rules of evidence do not apply
3) Except for rules of privilege, which do apply
4) The judge decides issues of law - e.g. “what is a crime involving a ‘dishonest act or false statement’ under Rule 609?”
5) All preliminary factual issues are decided by the preponderance standard (more likely than not).
6) The party offering evidence usually has the burden of proof.
7) Factual determinations affect 403 decisions. Weakly supported facts offer more likelihood of unfair prejudice. Will the dispute over these facts confuse the jury.
What are the two types of preliminary factual determinations?
Questions of law - resolved by the judge (no disputed facts) under the preponderance standard. Determines whether a policy reason exists to exclude otherwise relevant evidence. (104(a))
Questions of fact (disputed facts) - judge determines whether a rational jury could resolve the factual dispute either way. Judge will let a jury decide if some rational jury could resolve the issue either way. (104(b))
Who decides whether a trait is pertinent?
Rule 404(a)(2) - Judge decides as a matter of law
