Character

Question 2

The character witness

Answer 2

• A witness who offers testimony about another witness’s untruthful or truthful character.
• Need not have any personal knowledge of the facts of the case at hand.

Question 3

Cross-Examining the Character Witness

608(b)(2)

Answer 3

• Allows parties to ask character witnesses on cross-examination about specific incidents of a fact witness’s behavior.
  
  • Cross-examiner must have a good faith belief for believing that the specific acts occurred
  • The trial judge has discretion to exclude questions when they will create unfair prejudice substantially outweighing their probative value
• No extrinsic evidence of specific conduct

Question 4

Impeachment

Cross-Examining the Character Witness

608(b)(2)

continued

Answer 4

Character witnesses on another witness’s character for truthfulness

• Must relate to a witness
• Must relate to truthfulness
• Reputation or opinion evidence on direct
• Cross-examination on specifics
• No extrinsic evidence on specifics
• Testimony on good character only after character attacked
• Limited purpose:
  
  • jury should consider only to assess witness’s character for truthfulness
  • Rule 105: limiting instruction
  • Rule 403: exclude if unfair prejudice substantially outweighs probative value

Question 5

Religious beliefs and Impeachment

Rule 610

Answer 5

• Prohibits parties from using a witness’s religious beliefs to attack the witness’s credibility or to establish credibility
• Rule 610 does not bar religious belief when introduced for other purposes, such as establishing motive

Question 6

Rule 106. (Completeness) Remainder of or Related Writings or Recorded Statements

Answer 6

• If a party introduces all or part of a document, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.
• Allows a party to introduce qualifying portions of a document or recorded statement as soon as the opponent offers the first portion. Do not have to wait until presentation of case or rebuttal
• Applies only to writings and recorded statements
  
  • A judge can extend this to include other evidence, like recalled conversations
  • CEC 356 explicitly provides coverage for “conversations”
• May use it to introduce whole writings or recordings when necessary to understand another document offered by the opponent
• Fairness principle: it admits portions of writings or recorded statements that in fairness ought to be considered at the same time

Question 7

4 categories of character evidence

Answer 7

• Proof of a witness’s propensity to lie or tell the truth
• Proof of conduct by propensity
• Proof of character or reputation as elements
• Proof of other acts for non-propensity purposes

Question 8

Character Evidence

Propensity

Rule 404(a)(1)

Answer 8

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 or trait.

Question 9

Proving character as an element

405

Answer 9

• Rare: Defamation, child custody, entrapment, negligent entrustment
• Can use whatever tools you need to prove the element of the case
  
  • Reputation
  • opinion
  • specific instances of conduct

However, judge may exclude under 403

Must comply with other rules, such as hearsay

Question 10

Character Evidence

Answer 10

Proof of a witness’s propensity to lie

• Cross examine on acts
• Character witness
• Criminal conviction

Proof of party’s conduct by propensity

• Usually forbidden
• exceptions

Proof of other acts for non-propensity purposes

• Usually allowed

Question 11

Character evidence

Propensity

404(a)(1)

Answer 11

• Prohibits the use of character evidence to prove that a person acted consistently with their character on a particular occasion.
• The prohibition applies to proof of good or bad character.
• Applies to evidence offered about any person, even nonparties and nonwitnesses
• The rule helps assure that jurors base verdicts on evidence about particular events, not about the parties’ general character or proclivities

Exceptions

• proving a witness’s character for truthfulness or untruthfulness (608 & 609)
• some character evidence to prove propensity in criminal cases

Question 12

Rule 404(a)(2) Cheat Sheet

Character evidence to show propensity (in a criminal case)

Answer 12

• (1) Applies ONLY to criminal cases, not to civil cases.
• (2) Defendant must always go first in defending his character or attacking victim’s character
  
  • EXCEPT if it’s a homicide case and D is pleading self defense; then P can bring in evidence of peacefulness of victim.
• (3) P can do whatever D did, AND attack D’s character if D attacked victim’s character

Question 13

FRE 404(a)(2)

Character evidence to show propensity (in a criminal case)

Answer 13

• Applies only to criminal prosecutions
• D must always go first in defending his character or attacking victim’s character
  
  • Except if it’s a homicide case
• A prosecutor cannot introduce character witness of anybody first.

Question 14

FRE 404(a)(2): Character evidence to show propensity (in a criminal case)

Mercy Rule

Answer 14

• Criminal defendant should have as much latitude as possible to present a defence.
• Allows d to introduce evidence about his character OR the victim’s character
• Character trait must be pertinent
• Defendant is in the driver’s seat here. Though prosecution may admit evidence, it is only responsively.
• The phrase “opening the door” is nicely illustrated here. The door to propensity by character evidence is closed to the prosecutor, until it is opened by the defendant, who holds the key

Question 15

FRE 404(a)(2): Character evidence to show propensity (in a criminal case)

Mercy Rule: EXCEPTIONS

Answer 15

• D’s witness says D is peaceful. This allows Pros to have witness say that D is violent
• D’s witness says Victim is a violent person. Pros may then introduce its own witness, saying V is peaceful, or D is violent.
• If a homicide defendant claims the victim was the first aggressor, the Prosecutor may introduce evidence of the victim’s peaceful character regardless whether the D used character evidence to raise this issue

Question 16

Character evidence to show propensity (in a criminal case)

CALIFORNIA

Answer 16

• When D raises V’s character, D may use extrinsic evidence of specific instances of conduct
• When D raises V’s character, and Prosecutor wants to introduce evidence of D’s same trait, the trait must be violence.
  
  • Moreover, extrinsic SIC may be used (specific instances of conduct)

Question 17

FRE 405(a):

methods of proving propensity in criminal cases

Answer 17

• Opinion or Reputation testimony
• On cross examination of the character witness, relevant SIC
  
  • but must accept answers. No extrinsic evidence.
• Issues that arise under 405
  
  • Must lay a foundation
  • Good faith belief
  • Limiting instructions
  • Rebuttal character witnesses

Question 18

FRE 404(a)(2):

Character evidence to show propensity (in a criminal case)

Homicide cases

Answer 18

In homicide cases, the prosecutor can offer evidence of the victim’s peaceful character whenever the defense offers evidence that the victim was the first aggressor, even if the defense did not rely upon character evidence.

Question 19

Methods of proving propensity in criminal cases

Answer 19

404(a)(2): gives both the prosecution and defense limited ability to present propensity evidence about the accused and alleged victim.

• 405(a) further constrains that opportunity by restricting a character witness’s direct testimony to opinion or reputation evidence.
• On cross-examination, opposing counsel may ask a character witness about specific acts related to the character traits discussed on direct examination.
• The cross-examiner must have a good faith belief that the acts occurred, but neither party may offer extrinsic evidence related to those acts.
• When this type of cross-examination occurs, the judge will instruct the jury to consider evidence of specific acts only in assessing the character witness’s knowledge and credibiilty, not in determining the underlying issue of guilt or innocence.

Question 20

3 potential purposes for admitting evidence of a person’s character

Answer 20

• 1. When a person’s character trait is a material element in the case
• 2. Character evidence is used to prove conduct in conformity with that character trait on the occasion in question
• 3. Witness’s bad character for truthfulness to impeach credibility

(Non-character purposes for offering character evidence or prior crimes: MIMIC

When D is charged with sexual assault or child molestation, all rules about propensity are waived)

Question 21

Barbri

1. When a person’s character trait is a material element in the case

Answer 21

• Negligent entrustment, retention, or hiring cases
  
  • Reputation, opinion, or SIC evidence
• Defamation
  
  • Where truth is a defense
  • Can use reputation, opinion, or SIC evidence to prove truth

Question 22

Barbri

2. Character evidence is used to prove conduct in conformity with that character trait on the occasion in question

Criminal cases

Defendant’s character

Answer 22

• In prosecution’s case in chief, may not offer character evidence
• In D’s case in chief, D may offer relevance of a character trait
  
  • Can only be opinion or reputation testimony
  • Trait must be relevant to the crime
  • Honesty is not relevant to murder (violence)
  • If about D’s good character, the prosecution may rebut it
• Prosecution’s rebuttal
  
  • 1. Call its own character witness to testify to relevant character trait
       * Reputation and/or opinion testimony
  • 2. Cross-examine the D’s character witness
       * Can use specific incidents of relevant character trait
       
       • Have-you-heard or did-you-know questions
       • Purpose of questions is to impeach witness
       • CANNOT use extrinsic evidence. Must accept answer.

Question 23

Barbri

2. Character evidence is used to prove conduct in conformity with that character trait on the occasion in question

Criminal cases

Victim’s character

Answer 23

Victim’s character

• Permitted in self-defense cases
  
  • A criminal defendant may introduce evidence of V’s violent character
  • Character witness may offer only reputation or opinion evidence
• Prosecution may offer rebuttal evidence of
  
  • V’s good character
  • D’s bad character

Victim’s character (sex-crimes)(rape-shield law)

• Both criminal and civil
• NOT ADMISSIBLE
  
  • Opinion or reputation testimony about V’s sexual propensity
  • Evidence of specific sexual behavior of victim
• Exceptions
  
  • Testimony admissible to prove that someone other than D was source of injury or DNA
  • V’s sexual activity with D is admissible if D is asserting defense of consent
  • If constitution requires admissibility

Question 24

Barbri

2. Character evidence is used to prove conduct in conformity with that character trait on the occasion in question

Civil Cases

Answer 24

• Character evidence to prove conduct in conformity is not permitted in civil cases
• No “mercy” rule

Question 25

Barbri

3. Witness’s bad character for truthfulness to impeach credibility

Answer 25

• Specific, singular character trait: truthfulness
  
  • (general propensity to lie on the witness stand)
• 3 ways to prove poor character for truthfulness
  
  • 1. Calling a character witness to the stand
       * Opinion testimony
       * Reputation testimony
  • 2. Offering evidence of certain kinds of criminal convictions
       * Felonies
       * Only admissible if probative value is not outweighed by prejudice
       * Misdemeanors or felonies that involve dishonesty
  • 3. Evidence of other bad acts involving deceit or lying
       * Must simply take the witness’s answer, cannot use extrinsic evidence

Question 26

Barbri

Non-character purposes for offering character evidence or prior crimes

Answer 26

• Motive
• Intent
• Mistake or accident, absence of
• Identity
• Common scheme or plan (to prove identity)
• The prosecutor must provide reasonable notice of its intent to introduce this evidence against a criminal defendant
• Governs evidence of good acts as well as bad ones
• If this evidence survives a 403 balancing test, it is admitted with a limiting instruction

California (CEC § 1101): Substantively it’s the same.

Question 27

Barbri

When D is charged with sexual assault or child molestation

Answer 27

• Both criminal and civil
• P may introduce other instances of sexual misconduct in their case in chief for any purpose (even propensity)

Question 28

406:

Evidence of Habit or Routine Practice is Admissible to Show Action on a Particular Occasion

Answer 28

• Evidence CAN be admitted to show that you acted on your habit
  
  • What did the parties DO? (not what is their character)
• Habit refers to specific, repeated responses to a particular situation or stimulus
  
  • An individual who is placed in a particular situation will respond over and over again with the same specific behavior
  • Rule 406 allows litigants to present past examples of this specific behavior to prove than an individual behaved the same way during the incident that is the subject of litigation
• The more specific the act and the stimulus, and the more predictable the response, the more likely that the evidence is permissible habit instead of impermissible propensity
• A habit is
  
  • Specific conduct
  • In distinctive situation
  • On a regular basis
  • With lack of moral overtones
• Alcohol use is normally not considered a habit (but could be, the more specific you get)
• California: No difference!

Question 29

412

Rape Shield Law

Answer 29

• Generally bars any evidence of a victim’s sexual reputation
  
  • Criminal Cases
    
    • However- Allows evidence of reputation or prior sexual acts under certain circumstances
      
      • Evidence of specific instances of sexual behavior is admissible if offered to provide an alternate explanation for physical evidence such as injuries or semen
      • Evidence of prior sexual conduct between the D and the victim is admissible when offered by the prosecution for any purpose or by the D to prove consent
      • When necessary to protect the constitutional rights of the D
        
        • Courts most ofen admit evidence under this when a D offers it to attack the V’s credibility
  • Civil Cases
    
    • Reverse 403 test: showing that the probative value of the evidence substantially outweighs its (1) unfair prejudice to the parties and (2) harm to the victim
• CALIFORNIA
  
  • Explicit exclusion of evidence of how the victim was dressed, when offered to issue of consent.

Question 30

413/414: Propensity

Similar Crimes in Sexual-Assault [and child-molestation] cases

Answer 30

Allows the prosecutor to introduce evidence of other sexual assaults or child molestations to prove that the D had a propensity to commit the crime

Question 31

415: Propensity

Similar acts in civil cases involving sexual assault or child molestation

Answer 31

• Allows the P to introduce evidence of other sexual assaults or child molestations to prove that the D had a propensity to commit the crime
• Grants private parties the same freedom in civil cases involving sexual assault and child molestation

CALIFORNIA

• No 415 equivalent –CEC 1108 applies only to criminal cases.
• Not just sexual assault and child molestation, but also child pornography.
• California has an additional propensity exception, at CEC 1109, for acts of domestic violence.

Question 32

Sexual-Assault [and child-molestation] cases

Miscellaneous

Answer 32

• Prior offense of sex assault or molestation need not produce a formal charge or conviction; any accusation of prior conduct satisfies 413-415
  
  • Rule 403 still applies to this evidence
• Applying rule 403. The court looks at
  
  • The amount of time that has passed since the previous incident
  • The reliability of the evidence
  • The similarity between the past incident and the crime charged
  • Whether the govt could prove its point using less prejudicial evidence

Question 33

Evidence of D’s Bad Acts and Character

Rules

Answer 33

• 413-14: Sexual propensity
• 404(a)(2): Reply to mercy evidence
• 404(b): Non-propensity purpose
• 406: Habit
• 608(b): X-exam on truthfulness
• 608(a): Character W on truthfulness
• 609: Criminal convictions
• 611: X-exam to contradict

Question 34

Evidence of Victim’s Bad Acts and Character

rules

Answer 34

• 412: Rape shield rule
• 404(a)(2): Mercy evidence
• 404(b): Non-propensity purpose
• 406: Habit
• 608(b): X-exam on truthfulness
• 608(a): Character W (truthfulness)
• 609: Criminal convictions
• 611: X-exam to contradict

Question 35

In civil cases involving sexual assault, evidence offered to prove the sexual disposition or behavior of the alleged victim is….. (admissible or inadmissible)

Answer 35

….admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

The rule for criminal cases is different: Evidence offered to prove the sexual disposition or behavior of the alleged victim may be admissible in criminal cases only in specific instances, such as where evidence of specific instances of sexual behavior by the victim is offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence, or when specific instances of sexual behavior between the victim and the accused are admissible to prove consent.