Character and Habit

Question 1

Meaning of the term “character” in character evidence

Answer 1

The term “character” is used to describe personality traits that are deeply ingrained in a person’s psyche – character evidence has been defined as “a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness.

Question 2

Recognized dangers associated with the use of character evidence at trial

Answer 2

(1) because the use of character evidence is so prevalent in everyday life, the danger exists that the jury will overvalue its importance at trial
(2) the use of character evidence could perhaps cause the jury to disregard the burden of proof at trial
(3) while character evidence may provide a generally accurate picture of an individual’s decisions and actions, “it is less accurate when used to decide what happened on one particular occasion because people do not always act in accordance with their propensities”
(4) the introduction of character evidence could potentially complicate and considerably lengthen the trial proceedings

Question 3

Rule 404(a)(1) - Character Evidence - Prohibited Uses

Answer 3

(1) Prohibited Uses. 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 4

404(a)(2) - Character Evidence - Exceptions for a Defendant or Victim in a Criminal Case

Answer 4

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) 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.

Question 5

404(a)(3) - Character Evidence - Exceptions for a Witness

Answer 5

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

Question 6

Important distinction between character and habit evidence

Answer 6

Evidence of habit is similar to character evidence, but with an important distinction. Rather than inferentially suggesting a person’s behavior based on general character traits, habit evidence focuses on a person’s consistent actions in certain situations.

An example of habit: always using the same stairwell.

Question 7

Rule 406 - Habit, Routine Practice

Answer 7

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Question 8

Rule 405 - Methods of Proving Character

Answer 8

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Question 9

Essentially the only time 405(b) can be used in criminal cases

Answer 9

entrapment cases

Question 10

Reputation Evidence

Answer 10

Reputation evidence consists of testimony about what others in the community think about the person whose character is at issue

A reputation witness can testify only about the broad character trait and is not allowed to testify about specific underlying facts that helped form the reputation

Question 11

Opinion Testimony

Answer 11

Opinion testimony represents the witness’s direct observations over time, rather than what the witness has heard others say about the person whose character is at issue.

Question 12

Specific Acts

Answer 12

The use of specific acts evidence is strictly limited to cases where character evidence is an “essential element” of a charge, claim, or defense.” R405

Specific acts evidence includes not only affirmative evidence of acts, but also evidence of the absence of acts.

Question 13

Fundamental Requirements of Reputation Evidence

Answer 13

Witness belongs to a certain community – this is broadly defined and includes towns, cities, workplaces, social organizations, military units, etc.

The person whose character is at issue also was part of that community

Witness testifies that the person has developed a reputation in the community for a “pertinent” character trait

Witness testifies as to the reputation

Question 14

Fundamental Requirements of Opinion Evidence

Answer 14

Witness testifies they have known the person whose character is at issue for a particular length of time

Witness testifies that during that time, the witness has had an opportunity to form an opinion of the person as to the pertinent character trait

Witness testifies as to their opinion, but without reciting specific incidents that helped reach that opinion.

Question 15

Corroboration/proof with habit evidence

Answer 15

Habit evidence does not have to be corroborated and can be proved by reputation, opinion, or specific acts. The key foundational words of habit testimony are words such as “always,” “habitually,” “invariably,” or the like. A person who “usually” or “generally” does something in a particular way does not have a habit, but merely a tendency, and such testimony is inadmissible as habit evidence to prove conforming conduct.

Question 16

Key foundational concepts regarding habit evidence

Answer 16

No corroboration required

May be established by testimony regarding specific acts, reputation, or opinion

FRE 104(a) hearing may be necessary – question is whether this should be before a jury

Question 17

Rule 405’s mechanism for testing knowledge of a reputation or opinion witness by cross-examination on specific acts

Answer 17

The specific acts inquired into on cross examination cannot be considered by the jury for their truth, and if the witness denies knowledge of them or claims they can’t possibly be true, the examiner is not permitted to provide extrinsic proof of the acts; the examiner is bound by the witness’s answer.

Question 18

Process for testing a witness’s testimony under Rule 405

Answer 18

(1) First, in the pretrial preparation and discovery process, the parties explore character issues and prepare to introduce or respond to pertinent character evidence
(2) Second, the proponent of the character witness introduces reputation or opinion testimony of a pertinent character trait
(3) Third, the opponent cross-examines the character witness’s knowledge by asking about specific acts that run counter to the reputation or opinion testimony. The opponent must have a good-faith basis to believe that the specific acts are true and must be prepared to make an offer of proof to the judge and opposing counsel. The form of these questions is also critical; the opponent must use the phrases “have you heard,” “were you aware,” or “did you know,” when introducing the specific acts.
(4) Fourth, the opponent appropriately uses the cross-examination results in closing argument.

Question 19

The only two appropriate uses for information derived from cross-examination on specific acts

Answer 19

(1) a witness’s lack of knowledge of the specific acts suggests an inadequate basis for their reputation or opinion testimony
(2) a witness may reveal bias by admitting knowledge of the specific acts but insisting the reputation or opinion is nonetheless true

Question 20

Key concept pertaining to character evidence in criminal cases

Answer 20

The key concept pertaining to character evidence in criminal cases is that the criminal defendant holds all the keys to character evidence. The defendant chooses whether to introduce evidence of his own good character or the victim’s bad character. Once that decision is made, 404(a) allows prosecution to respond in particular ways

Question 21

Types of civil cases where courts have found character essential (under 405(b))

Answer 21

The character of the plaintiff in a libel or defamation case

Character of an employee in a negligent hiring case

Character of the entrustee in a negligent entrustment case

Character of the parents in a child custody case

Question 22

Do plaintiffs in civil cases have to wait for the defendant to initiate character evidence?

Answer 22

Plaintiffs in civil suits don’t have to wait for the defendant to introduce character evidence before using it themselves if it is admissible

Question 23

Distinctions between civil/criminal law with habit/routine practice evidence

Answer 23

There are no special distinctions between criminal and civil cases pertaining to evidence of habit or routine practice

Question 24

Rule 404(b)(1) - Crimes, Wrongs, or Other Acts - Prohibited Uses

Answer 24

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

Question 25

Rule 404(b)(2) - Crimes, Wrongs, or Other Acts - Permitted Uses

Answer 25

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
A.) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; AND
B.) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial motive.

Question 26

Does 404(b) apply to criminal or civil cases?

Answer 26

Rule 404(b) applies to both criminal and civil cases, although it is used most often in criminal cases.

Question 27

The pieces of Rule 404(b)

Answer 27

A prohibition on Propensity Evidence

Permissible Non-Character Uses

• Motive, Opportunity, Intent, Preparation, Common Plan or Scheme, Knowledge or Absences of Knowledge, Identity
• Another potential category is The Doctrine of Chance – what are the odds that this specific thing would happen to this defendant multiple times

Procedural requirements, which are designed to prevent unfair surprises at trial

Special Balancing Test

Question 28

404(b) category of motive

Answer 28

Motive – even if not an element of the crime/civil cause of action, it still helps tell a complete story and explain to the fact-finder why an individual may have acted a certain way

Question 29

404(b) category of opportunity

Answer 29

Opportunity – Evidence of other acts can be used to place an individual near the alleged incident at trial to prove opportunity to commit an act or offense

Question 30

404(b) category of intent

Answer 30

Intent – Evidence of other acts to prove intent is frequently offered in rebuttal to counter a defendant’s claim that he did not possess a particular intent. Similar incidents of conduct may also be offered in the prosecution’s case in chief to prove the defendant’s intent

Question 31

404(b) category of preparation

Answer 31

Preparation – many defendants violate a variety of criminal laws as they prepare to commit their ultimate offense. Proof of these other offense can be offered to show preparation for the charged offense

Question 32

404(b) category of common plan or scheme

Answer 32

Common Plan or Scheme – Evidence of other acts can be used to help prove that the charged offense was part of a common plan or scheme. The prosecution must be able to demonstrate the common plan or scheme. The prosecution must be able to demonstrate the common plan or scheme. A mere circumstantial similarity between the acts will not suffice

Question 33

404(b) category of knowledge or absence of mistake or accident

Answer 33

Knowledge or Absence of Mistake or Accident – Other acts can be used to prove the defendant’s knowledge of an element of the charged offense, or to rebut a claim of lack of knowledge.

Question 34

404(b) category of identity

Answer 34

Identity – Under this theory, evidence of another act is used to help prove the same person committed the charged offense and thereby to establish the identity of the defendant as the perpetrator (modus operandi). The theory only comes into play if the charged offense and the other acts share distinctive characteristics that are not generic to the crime

Question 35

The doctrine of chances

Answer 35

stands for the proposition that lightning doesn’t often strike twice and that it would be improbable for remarkably similar instances in a defendant’s life to be the cause of coincidence

Question 36

Four questions to ask when examining the issue of probative value versus risk of unfair prejudice under Rule 403

Answer 36

Is there a risk the evidence leads to an inference that the person had a propensity to behave in a certain way as a result of his or her character?

Is there another purpose for which the evidence could be offered, other than the propensity inference?

How effective will a limiting instruction be in containing the risk of unfair prejudice?

Will the risk of unfair prejudice substantially outweigh the probative value of the evidence? (Some courts reverse the traditional 403 analysis here, requiring the acts evidence must be more probative than prejudicial to be admitted

Question 37

Common misconceptions of Rule 404(b)

Answer 37

Although often used to admit criminal acts, the rule is NOT limited to crimes. It includes wrongs and acts.

The other act need not be “similar” to the current criminal offense or civil claim. Note, however, that some of the categories for admission rely on similarity, such as identity/modus operandi.

The other act need not have occurred prior to the charged offense. Evidence of a subsequent act may be admissible

The accused may offer evidence under FRE 404(b) to show that another person committed the charged crime.

FRE 404(b) applies to both criminal and civil cases

Question 38

Rule 413(a) - Similar Crimes in Sexual Assault Cases - Permitted Uses

Answer 38

Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

Question 39

Rule 413(b) - Similar Crimes in Sexual Assault Cases - Disclosure to the Defendant

Answer 39

Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

Question 40

Rule 413(c) - Similar Crimes in Sexual Assault Cases - Effect on Other Rules.

Answer 40

Effect on Other Rules. This rule Does not limit the admission or consideration of evidence under any other rule

Question 41

Rule 413(d) - Similar Crimes in Sexual Assault Cases - Definition of “Sexual Assault”

Answer 41

Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law *as “state is defined in 18 U.S.C. 513) involving:

(1) any contact prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body – or an object – and another person’s genitals or anus;
(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;
(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)-(4)

Question 42

Rule 414(a) - Similar Crimes in Child Molestation Cases - Permitted Uses

Answer 42

Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

Question 43

Rule 414(b) - Similar Crimes in Child Molestation Cases - Disclosure to the Defendant

Answer 43

Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witness’s statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

Question 44

Rule 414(c) - Similar Crimes in Child Molestation Cases - Effect on Other Rules

Answer 44

Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

Question 45

Rule 414(d) - Similar Crimes in Child Molestation Cases - Definition of “Child” and “Child Molestation”

Answer 45

Definition of “Child” and “Child Molestation.” In this rule and Rule 415:

(1) “child” means a person below the age of 14; and

(2) “child molestation means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. 513) involving:
(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child
(B) any conduct prohibited by 18 U.S.C. chapter 110;
(C) contact between any part of the defedant’s body—or an object—and a child’s genitals or anus;
(D) contact between the defednat’s genitals or anus and any part of a child’s body;
(E) deriving sexual pleasure or gratification from inflicting death, bodily harm, or physical pain on a child; or
(F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)-(E)

Question 46

Rule 415(a) - Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation - Permitted Uses

Answer 46

Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.

Question 47

Rule 415(b) - Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation - Disclosure to Opponent

Answer 47

Disclosure to Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.

Question 48

Rule 415(c) - Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation - Effect on Other Rules

Answer 48

Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

Question 49

Two significant protections Rule 413 and 414 do away with in criminal cases

Answer 49

(1) the tradition that the defendant holds the key to the introduction of character evidence at trial, as codified in 404(a) and
(2) the prohibition against using evidence of specific acts to prove character under R404(b)

Question 50

Time limit for using prior acts of sexual assault or misconduct

Answer 50

Case law has made it clear that there is no presumptive time limit for prior acts of assault or misconduct

Question 51

Examples of evidence of prior sexual assaults or incidents

Answer 51

Evidence of prior sexual assaults or incidents: past convictions, victim testimony (even if not reported/no legal action taken), witnesses of prior acts testimony

Testimony must come in the form of specific acts – reputation/opinion testimony inadmissible

Question 52

Three major concerns regarding the use of character evidence

Answer 52

(i) the purpose for which evidence of character is offered;
(ii) the method to be used to prove character; and
(iii) the kind of case, civil or criminal.

Question 53

Purposes of offering character evidence

Answer 53

1. To Prove Character When Character Itself Is Ultimate Issue in Case
2. To Serve as Circumstantial Evidence of How a Person Probably Acted
3. To Impeach Credibility of Witness