Character Flashcards
When can character evidence be admitted?
Under 404(a)(2), it may be admitted for a defendant or victim in a criminal case:
- D can offer evidence of D’s pertinent trait, and if admitted, prosecutor may rebut it
- subject to 412 limits, D can offer evidence of a victim’s pertinent trait and if admitted the prosecutor may offer evidence to rebut it and offer evidence of D’s same 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
- witnesses (see Rules 607–09)
When is evidence of other crimes, wrongs, or acts prohibited?
to show a person’s character ignorer to show that on an occasion they acted in accordance with that trait
When is evidence of other crimes, wrongs, and acts allowed?
May be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
When is notice of character evidence required?
In a criminal case, the prosecutor must provide reasonable notice in writing that it’s offering prior bad acts evidence so that D can fairly meet it, and articulate the purpose for which the evidence will be offered
When is character evidence banned?
to show propensity: because D has a certain trait, he must have done the crime
Does the accused have to testify to introduce evidence under 404(a)(2)?
No. They must trigger the exceptions to the character evidence ban, but they don’t have to do so by personally testifying.
Is Rule 404(b)(2) an exception to the propensity ban?
No, it applies when evidence is being used for purposes other than propensity. Often a prosecutor is using the evidence for both the permissible and impermissible purpose. However, then 403 balancing kicks in. It need only pass the Huddleston test (could jury reasonably believe it happened).
When do the character rules apply?
Propensity ban applies in both civil and criminal cases. Exceptions to ban under 404(a)(2) triggered by a defendant in criminal cases. Permitted use under 404(b) applies in civil and criminal cases - to use evidence for other purposes, not propensity.
Does 404(b)(2) only apply to convictions?
no - other crimes, wrongs, or bad acts
What is the Huddleston Standard?
Prior acts admitted under Rule 404(b)(2) need only pass this standard under which a judge will admit the prior crime, wrong, or act if a jury could reasonably believe that the act actually happened (assuming it is otherwise admissible)
How can admissible character evidence be proven?
Under Rule 405, it can be proven through:
(a) - testimony about a person’s reputation or by testimony in the form of an opinion. On cross examination of a character witness brought by D, the court may allow an inquiry into relevant specific instances to impeach the witness as long as crosser has good faith belief the incidents occurred (reasonable/low standard). Otherwise specific instances not allowed to be mentioned by D.
(b) - when a person’s character trait is an essential element of a charge, claim, or defense, the character or trait may also be proven by relevant specific instances of the person’s conduct
Is extrinsic evidence allowed to prove character?
Under 405(a), it can’t be introduced on cross (must accept witness’s testimony), but under 405(b), it can be introduced when it’s an essential element.
What foundation is necessary for a witness to give their opinion on character under 405(a)?
Attorney must first establish that the witness knows the person or knows that person’s reputation.
When is character an element?
defamation, child custody, entrapment defense cases, negligent entrustment
What is habit evidence admissible to prove?
that on a particular occasion the person or organization acted in accordance with a habit or routine practice (another non-propensity use)
What is a habit?
specific, repeated response to a particular situation or stimulus; morally neutral; very specific conduct
How can evidence of habit be proven?
through opinion testimony (including of D) and specific instances of conduct
When can a prosecutor introduce propensity evidence?
Only in homicide case to show victim was peaceable. Otherwise D must start the ball rolling.
What is rape shield?
An exception to 404(a)(2)(B). D can’t introduce evidence of pertinent victim traits, with some exceptions.
What are the rape shield exceptions?
criminal cases only
- evidence another was the source of semen (specific instances, not just presence of bf)
- evidence of prior sexual relationship with D to prove consent
- ill-defined safety net (“where failure to admit such evidence would be unconstitutional to D”)
What evidence does rape shield prohibit?
Evidence offered to prove:
- that victim engaged in other sexual behavior
- a victim’s sexual predisposition
Does rape shield apply to criminal and civil cases?
Yes
Can evidence of victim’s sexual behavior/disposition be admitted in a civil case?
Yes if the probative value substantially outweighs the danger of harm to the victim or unfair prejudice to any party. The court can only admit evidence of a victim’s reputation if she put it in controversy.
Can evidence of the accused’s past sexual crime be raised? When?
Yes, by the prosecutor whenever under Rules 413 and 414. Exception to the propensity ban.
