Character and Habit Evidence, Rape Shield: 404, 405, 406, 412-415

Question 1

How is character evidence defined? What determines if it’s being admitted?

Answer 1

Character evidence ⇒ anything that suggests how a person behaves

+ Character evidence analysis turns on whether proof that tends to prove character is being offered for the forbidden purpose (“propensity”) or for some other permitted purpose
+ If offered for any other purpose beyond propensity, character evidence is admissible under R.403 and other rules of evidence
+ Main question: What is this character evidence being offered to prove?

Question 2

What are the mental checks for evidence?

Answer 2

Mental Checks:

1. Civil or Criminal?
2. Who is offering the evidence?
3. If Criminal, has the D testified?
4. What type of evidence? (Special rules around testimonial)

Question 3

Why is propensity of character evidence generally not allowed?

Answer 3

+ Jurors may overvalue character proof – describing general behavior only
The more broad the character trait, the less predictive its power

+ Jurors may punish a person for reprehensible conduct even when that conduct is not at issue in the current case – moral overtones

+ Consumes time and risks confusing jurors about issue at trial – “sideshow”
“Slight probative value and may be highly prejudicial… tends to distract the trier of fact from the main question of what actually happened on the particular occasion

Question 4

What are the primary purposes for character evidence?

Answer 4

1) Act propensity: If someone acts a certain way, we can prove they did the bad thing
2) Proving traits when it’s an element in cause of action/claim/defense
3) Credibility: If the person testifying is believable
4) Demonstrate intent/motive

Question 5

What are the types of propensity evidence?

Answer 5

1) Act: Because a person is a certain way, they must have acted in a way that relates to the charges in the case
+ Banned in all civil cases
+ Some exceptions in criminal cases in R.404: D has to open the door
+ Exceptions to exceptions: Rape shield. R. 412, Bringing in previous crimes D committed for propensity

2) Character: Pertinent trait to the charges at issue
+ Peacefulness v. Violence
+ Honest v. Dishonesty → can be mixed up with credibility (can be one, the other or both!)

Question 6

What does Rule 404(a)(1) say?

Answer 6

R. 404 Character Evidence

(a) Character Evidence.
(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 7

What does R.404(a)(2)(A) say?

Answer 7

Rule 404: Character Evidence; Crimes, or Other Acts
(a) Character Evidence
(2) Exceptions for a Defendant or Victim in a Criminal Case
The following exceptions apply in a criminal case:

(A) Defendant may offer evidence of his pertinent trait and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

Question 8

What does R.404 (a)(2)(B) say? What are its limitations?

Answer 8

R.404 Character Evidence; Crimes or Other Acts
(a) Character Evidence
(2) Exceptions for Defendant or Victim in a Criminal Case
(B) Subject to R.412 limitations, D may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecution may
(i) offer evidence to rebut it
(ii) offer evidence of D’s same trait

+ Relevant only in self-defense cases
+ Evidence offered must comply with R.405(a) requirements

Question 9

What does Rule 404(a)(2)(C) say? What are its limitations?

Answer 9

R.404: Character Evidence; Crimes, or Other Acts

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

(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.

+ Limited to criminal homicide cases, NOT EVEN attempted homicide

Question 10

What does Rule 404(b)(1) say?

Answer 10

Rule 404: Character Evidence, Crimes, or Other Acts
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses.
Evidence of any other crime, wrong, or 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 11

What does Rule 405(a) say?

Answer 11

R. 405: Methods of Proving Character
(a) 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 character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

Question 12

When can reputation, opinion, and specific acts evidence be admitted (cross or direct)?

Answer 12

+ Reputation (Direct) → what people in a relevant community say about a particular person’s character

+ Opinion (Direct) → what an individual who knows another person well thinks of that other person’s character (as opposed to what the individual has heard other people say about that character)

+ Specific acts (Cross Examination) → Specific instances of a person’s behavior that reveal something about his/her character

Question 13

Hypo: D is on trial for assault. He offers witness testimony that he’s a peaceful man, then P offers witness testimony to the contrary. D objects. How should the court rule?

Answer 13

Objection: improper character evidence
Response: Pertinence to the crime involved under rule 404(a)(2)(A)
Ruling: Overruled

Question 14

What does Rule 404(b)(2) say?

Answer 14

Rule 404: Character Evidence, Crimes, or Other Acts
(b) Crimes, Wrongs, or Other Acts
(2) Permitted Uses 
Evidence of crimes, wrongs, or other acts may be admissible for another purpose such as 
\+ proving motive
\+ opportunity
\+ intent
\+ preparation
\+ plan
\+ knowledge
\+ identity
\+ absence of mistake
\+ lack of accident

Question 15

Can 404(b)(2) apply to uncharged misconduct and acquittals?

Answer 15

Yes.
404(b)(2) also applies to uncharged misconduct, as long as occurrence of the earlier crime is shown by the appropriate standard of proof required for that jurisdiction

Acquittals only show that the state could not prove beyond a reasonable doubt, but does not prove innocence.
+ Prosecutors could offer sufficient evidence to enable a reasonable jury to find guilt by a preponderance of the evidence under R.402(b)(2) even though a different jury has entered an acquittal
+ NOT double jeopardy, using prior case to show by a preponderance of the evidence that the prior act happened and how it relates to an element of the crime at-issue

Question 16

What is the justification for Rule 404(a)(2)(A)?

Answer 16

1) D is typically outmatched by P’s resources – give D the option to point to his character as evidence that he didn’t do it. Act of mercy to D
2) Warning to Ds introducing character evidence – opens the door for P to rebut

Question 17

What is the difference between pertinence and relevance as it applies to Rule 404(a)(2)(a)?

Answer 17

Pertinence is key ⇒ traits involved in the offense charged
Relevance ⇒ ANY tendency to make the existence of a fact that is of consequence to determination of the action more probable or less probable than it would be without evidence

How to distinguish between pertinence and relevance? It depends on the facts of the case and how the court weighs R.403
+ A person’s general character for being law abiding has some probative force and many courts would allow criminal Ds to admit at least some proof of the trait
+ BUT as the evidence becomes cumulative or time consuming, courts retain discretion to exclude as the waste of time substantially outweighs probative force

Question 18

True or false: Rule 404(a)(2)(B) does not allow prosecutor to attack D’s character

Answer 18

False. 404(a)(2)(B) also allows prosecutor to attack D’s character on the same trait ⇒ D opens the door to an attack on his own character by the prosecution that would otherwise be barred (risky)

Question 19

How does Dowling v. U.S. illustrate the concept of 404(b)(2) in relation to R.403?

Answer 19

Dowling v. U.S.
+ “Because a jury might conclude by a preponderance of the evidence that Dowling was the masked man… even if it did not believe by a reasonable doubt.”

+ The strength of the evidence establishing the similar act is one of the factors the court may consider when conducting the R.403 balancing

Question 20

True or false: Just because someone nominally offers other-acts evidence, the evidence does not automatically avoid R.404’s propensity ban

Answer 20

True.
+ Prosecution could point to evidence to prove intent, but clearly it’s propensity
+ Proof of “lack of intent” would also fail

Ex: Evidence relevant to show that P could have actually committed a crime (OK) versus using evidence to show that P is the type of person who commits such crimes and acts in accordance (NOT OK)

+ Using the words from R.404(b)(2) don’t will evidence from propensity to other acts

Question 21

What is the fine line between character evidence (act propensity) and character evidence (motive)? What’s an example?

Answer 21

Motive may speak to whether someone acted at all, whether they acted with the requisite mental state or both!

Motive: “Aptly described as inducement or state of feeling that impels and temps the mind to indulge in a criminal act… perhaps best viewed as a circumstantial fact that usually need not be shown to prove guilt but is often relevant as a basis to infer both intent and act”

Ex: D was in serious debt, this evidence provides motive for a bank robbery
+ We’re not saying she may be more or less likely to commit robbery via propensity inference (D is not the type of person who’d commit such a crime) but it’s relevent because it tips the scales for reason to commit the crime.
+ BUT there can still be objections to character propensity inference

Question 22

Hypo: Defendant’s attorney alleges that the victim in a homicide case “started” the incident at issue for which D is on trial. The prosecution moves to offer evidence that the victim is generally peaceful. The defense objections. How should the court rule?

Answer 22

Overruled. Per 404(a)(2)(C), prosecution may offer evidence of homicide victim’s (now dead) trait of peacefulness to rebut evidence that the victim was the first aggressor.

Question 23

What does Rule 406 say?

Answer 23

Rule 406: Habit, Routine Practice

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 eye witness.

Question 24

What does Rule 404(a)(3) say?

Answer 24

R.404(a)(3) Character Evidence, Other Crimes, Wrongs, or Acts
(a) Character Evidence
(3) Exceptions for a Witness.
Evidence of a witness’s character may be admitted under Rules 607, 608, and 609

Question 25

What is the difference between character-based impeachment and non-character based impeachment?

Answer 25

1) Character impeachment
+ Witness has a character for untruthfulness (indicated by reputation, opinion, or specific instances of untruthful conduct)
+ Therefore, witness is less likely to be telling the truth on the stand today

2) Non-character impeachment
+ Includes proof indicating that the witness is lying in the specific instance for some reason, not that the witness is generally a liar
+ May also establish the witness was mistaken in testimony because of perception or memory issues
+ Bias, Prior Inconsistent Statement, Contradictory Evidence, Memory or Perception

Question 26

What does Rule 412(a) say?

Answer 26

Rule 412: Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition
(a) Prohibited Uses
The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct

(1) Evidence offered to prove that a victim engaged in other sexual behavior; or
(2) Evidence offered to prove a victim’s sexual predisposition

Question 27

What does R. 412(b)(1)(A)-(C) say?

Answer 27

R.412 Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition (Rape Shield)

(b) Exceptions
(1) Criminal Cases: The court may admit the following evidence in a criminal case

(A) Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than D was the source of semen, injury, other physical evidence
(B) Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor
(C) Evidence whose exclusion would violate D’s constitutional rights

Question 28

What does Rule 412(b)(2) say?

Answer 28

R.412 Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition

(b) Exceptions
(2) Civil Cases: In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

The court may admit evidence of a victim’s reputation only if the victim has placed in controversy.

Question 29

What are the general concepts surrounding R. 413, R. 414, R. 415?

Answer 29

R. 413: Similar Crimes in Sexual Assault Cases
R. 414: Similar Crimes in Child Molestation Cases
R. 415: Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

The court may admit evidence that a defendant committed any other X crime. The evidence may be considered on any matter to which it is relevant.

If the prosecution wishes to offer such evidence, it must be disclosed to D – at least 15 days before trial OR later if the court gives good cause.

Question 30

D argues that evidence of the victim’s sexual past can be used to impeach the victim’ in her testimony. And usually promiscuous women are usually liars.

Is this allowed?

Answer 30

NOT ALLOWED under R.412(a).
BUT R.412 DOES allow evidence where victim made past false allegations of sexual misconduct → character-based impeachment evidence

Question 31

Does R.412(a) apply to criminal and civil cases?

Answer 31

Rule 412(a) Extends to criminal and civil cases

Question 32

Do the exceptions in Rule 412(b)(1) apply to civil and criminal cases?

Answer 32

Rule 412(b)(1) exceptions apply only to criminal cases.

(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) 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; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.

Question 33

What are the two narrow circumstances in a civil case where a victim’s sexual conduct would be permitted as reputation or opinion evidence? Is this common?

Answer 33

Rule 412(b)

1) Evidence that shows victim and D had a previous consenting sexual relationship
2) Statements which the alleged victim expressed intent to engage in sexual intercourse with defendant or voiced sexual fantasies involving accused

Only if plaintiff has put her reputation at issue

Very rare

Question 34

Do the exceptions in R.412(b)(2) apply to criminal and civil cases?

Answer 34

R.412(b)(2)
Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

Question 35

How are the rape shield exceptions different for civil (vs. criminal) case evidence?

Answer 35

1) Balancing test for civil cases versus specific exceptions for criminal cases
+ “Greater flexibility needed to accommodate resolving causes of action such as claims for sexual harassment”

2) Differs from general rules of admissibility
+ Shifts burden to proponent to demonstrate admissibility rather than making the opponent justify exclusion of evidence
+ Standard express is more stringent than OG rule, raising threshold for admission
+ Probative value of evidence must substantially outweigh specified dangers
+ Puts harm to the victim on the scale in addition to prejudice to parties

3) Reputation evidence may be used only if the alleged victim put his/her reputation into controversy

Question 36

P brings claim against her employer for sexual harassment. The employer allowed pornography to be distributed in the workplace. In its defense, employer argued that employee regularly consumed pornography. The prosecution objects. How should the court rule?

Answer 36

Objection sustained because the evidence doesn’t put P’s reputation at issue.

Question 37

P makes a claim of hostile work environment where co-workers put her head on a nude body from a magazine and spread rumors about her that P was a “well-known slut.” P seeks damages for harm to her reputation.

Can the defense introduce character evidence re: P’s prior sexual conduct or reputation?

Answer 37

D could introduce evidence of P’s previous sexual encounters and behavior to show her reputation before the incident at issue.

Question 38

Is evidence of consent relevant to Rule. 414?

Answer 38

R.414: Child molestation only, not adult rape

Consent is irrelevant

Question 39

D accused of raping P while on a date. D admits to having sex with P but says it was consensual. Three witnesses are proffered to testify that within the last year D raped them while on a date, however none of these witnesses had reported the crime out of fear of the judicial process. Will their testimony be admissible?

Answer 39

Yes, under R.413 for “any matter which it is relevant,” even on a propensity inference tend to show that D acted “forcibly” which proves an element of rape. In addition, the testimony shows that P did not consent and that D knew.

Such evidence is subject to R.403, but likely to be admitted.

Question 40

D accused of raping P while on a date. Prosecution has testimony from witnesses who D allegedly groped and fondled over 20 years ago. Will this be admitted?

Answer 40

Probably not, as probative value is low in proving rape, given less serious nature of earlier offenses. Also, circumstances are different.

Question 41

How is Habit evidence different from Character Evidence?

Answer 41

Character → generalized description of one’s disposition or of one’s disposition in respect to a general trait
+ honesty, temperament, peacefulness

Habit → more specific, describing one’s regular response to a repeated specific situation. Meeting a particular kind of situation with a particular kind of conduct. Semi-automatic.
+ Admissible to prove that the person conformed with their propensity to engage in the habit on a particular occasion
+ Probative value of habit evidence to prove conformity is high

Question 42

What does Rule 404(a)(2)(B) say?

Answer 42

R.404: Character Evidence, Crimes or Other Acts
(a) Character Evidence
(2) Exceptions for a Defendant or Victim in a Criminal Case
(B) Subject to R.412 limitations, a defendant may offer evidence of an alleged victim’s pertinent trait. If the evidence is admitted, prosecution may
(i) offer evidence to rebut
(ii) offer evidence of D’s same trait