Character and Impeachment

Question 1

what is the rule and exceptions for character evidence used to show propensity?

Answer 1

general rule: 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

exceptions for CRIMINAL cases:
o (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
 **can’t be too general like “he’s a good person” – it has to be a trait (like patience or peacefulness)

o (b) subject to the Rape Shield Rule (412), a defendant may offer evidence of any alleged victim’s pertinent trait
 if the evidence is admitted, the prosecutor may:
• (i) offer evidence to rebut it, AND
• (ii) offer evidence of defendant’s same trait

o (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

exceptions for a witness: evidence of a witness’s character may be admitted to impeach

Question 2

crimes, wrongs, and other acts can/cannot be used to show what? what is an “other act”? what is the court’s SOR?

Answer 2

evidence of a crime, wrong, or other act is not admissible to prove propensity

this evidence IS admissible to prove:
MIMIC

	Motive
	Intent
	Mistake
	Identity
	Common plan/scheme

o “other act” means misconduct and can be prior or subsequent

SOR is 104(b)

Question 3

what are the methods for proving character (i.e. propensity)? what must be established first?

Answer 3

when evidence of a person’s character is admissible…
o it may be proved by:
 testimony about the person’s reputation, or
 testimony in the form of an opinion

o **on cross, of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct
 limitations
• subject to 403
• prosecution must have a valid good faith basis for the incidents inquired about
• the incidents inquired about must be relevant to the character traits involved
• the prosecution is must “take the witness’s answer” and may not introduce extrinsic evidence

when a person’s character is an essential element of a charge/claim/defense, the character may also be proved by relevant specific instances of the person’s conduct

Question 4

what are the requirements for reputation evidence? isn’t reputation evidence hearsay?

Answer 4

o the witness must be qualified by showing that the witness has a sufficient acquaintance with:
 the person (personal relationship not required),
 the community in which the person has lived/worked, AND
 the circles in which the person has moved to speak with authority of the terms in which he is generally regarded

o **now this is technically hearsay, but it falls under the R803(21) “reputation” exception

Question 5

what are the requirements for opinion evidence?

Answer 5

o the witness must have sufficient familiarity to be qualified to express an opinion as to a person’s character (personal relationship required)
o the opinion must be rationally based on perception
o **this rule embraces expert AND lay opinion as to a person’s traits

Question 6

is habit/routine practice admissible to show propensity? how does it differ from character evidence? what are the distinguishing characteristics?

Answer 6

• rule: habit/routine evidence may be admitted to prove propensity

• habit vs character
o habit is “one’s regular response to a repeated specific situation” and is thus much narrower
o habit evidence has greater probative value because it is based on regular responses to a specific situation – and the risk of prejudice is low because it does not – like general character evidence – a moral/ethical judgment about the persons

• factors to consider
o specificity of the conduct (the more particularized = the more likely it qualifies as a habit)
o frequency of the conduct (the more a person seems to engage in the conduct without thinking about it = the more likely it qualifies as a habit)
 behavior does not need to be automatic/subconscious, but that certainly helps
 evidence that the action occurred only a modest number of times is insufficient

Question 7

what are the carveouts for using character evidence to show propensity?

Answer 7

rape shield
sexual assault
child molestation

Question 8

what is the general rule and exceptions for rape shield? what are the exceptions for civil and criminal cases?

Answer 8

Rape Shield Provision
o (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
• **evidence of sexual behavior intrinsic to the alleged sexual misconduct is not “other” sexual behavior and may thus be admissible

 (2) evidence offered to prove a victim’s sexual predisposition

o (b) exceptions (104(b) determination)

 (1) criminal cases: the court may admit the following evidence
• (a) specific instances of victim’s sexual behavior if offered to prove that someone other than ∆ was the source of the semen/injury/other physical evidence
• (b) specific instances of victim’s sexual behavior with respect to ∆, if offered by ∆ to prove consent OR if offered by the prosecutor
• (c) evidence whose exclusion would violate ∆’s constitutional rights

 (2) civil cases: the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition only if:
• the victim has placed it in controversy
• its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party (reverse 403 balancing test)

 **in both civil and criminal cases, this rule applies even if the alleged victim or the person accused of the sexual misconduct is neither the complainant nor the defendant
• for example – the rule protects witnesses called to testify to other acts of sexual misconduct by a defendant from being interrogated about their past sexual behavior

Question 9

what is the rule regarding evidence of similar crimes of sexual assault or child molestation? what are the exceptions?

Answer 9

o (a) general rule: in a civil or criminal case in which a defendant is accused of a sexual assault or child molestation, the court may admit evidence that the defendant committed any other sexual assault or child molestation – the evidence may be considered on any matter to which it is relevant

**includes acts; attempts; conspiracies

NO EXCEPTIONS except subject to R403

Question 10

what is the rule for introducing character evidence to show witness’s credibility? what is the rule regarding extrinsic evidence and specific instances in this area?

Answer 10

reputation/opinion evidence: a witness’s credibility may be attacked/supported by reputation or opinion testimony
o **subject to 403
 **but evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked

except for criminal conviction under 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack/support the witness’s character for truthfulness
o **but the court may, on cross, allow them to be inquired into if they are probative of the character for credibility of:
 (1) the witness, or
 (2) another witness whose character the witness being cross-examined has testified about
 note:
 limitations:
• **inquired into does not mean offer extrinsic evidence!
• counsel must have a good faith basis for making the inquiry
• counsel must take the witness at his answer and may not offer extrinsic evidence

Question 11

what is the difference between offering evidence bearing on witness credibility and offering character evidence?

Answer 11

o evidence bearing on witness credibility: calling into question the believability of the specific testimony
 ex) bias/inconsistent prior statements

o witness character evidence: relates to the general credibility of the witness and suggests something about the morals/ethics of that witness

Question 12

what is the governing rule regarding impeachment evidence? what are the 5 primary methods of impeachment?

Answer 12

• rule: any party, including the party that called the witness, may attack the witness’s credibility (propensity for truthfulness/untruthfulness)

•	Methods of Impeachment (BICCC)
o	Bias – R607
o	Inconsistent Statements – R613
o	Character for Truthfulness – R608; R609
o	Capacity – R607; R401-403; R611
o	Contradiction – R607; R401-403

Question 13

what is the key inquiry when dealing with impeachment evidence?

Answer 13

the key inquiry in this area is determining when you can use extrinsic evidence and when, instead, you need to take the witness’s answer

Question 14

distinguish extrinsic evidence from intrinsic evidence? when is each allowed for impeachment purposes?

Answer 14

o extrinsic evidence: any evidence offered to contradict a witness that comes from a source other than that witness while she is testifying in this trial (intermittently allowed)
 ex) other person’s testimony; OOC statements by the witness or some other person; documents

o intrinsic evidence: testimony by this witness at this trial (always allowed)

Question 15

what is the rule regarding impeaching a witness by showing bias? can extrinsic evidence be admitted?

Answer 15

o rule: a pty can attack a witness’s credibility by showing that the witness has some personal, financial, penal, etc. interest in the litigation or fear of retribution that would cause the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party (US v Abel)

o extrinsic evidence to prove bias: admissible, subject to R403

Question 16

what is the rule regarding impeaching a witness by contradiction? can extrinsic evidence be admitted?

Answer 16

o rule: a pty can attack a witness’s credibility by showing that the substance of a witness’s testimony may be contradicted

o extrinsic evidence to prove contradiction: allowed UNLESS it is being used to prove a “collateral matter”

 collateral matter: where the sole value of the statement is its impeachment value (inadmissible)
 non-collateral matter: where the statement has value independent of its impeachment value (i.e. substantive, bias, capacity, etc.) (admissible)
• even if contradiction evidence is not relevant to a substantive issue, it is still “non-collateral” if it says something about the witness’s credibility beyond contradicting her

 **collateral matters are not relevant if the evidence being offered is intrinsic (i.e. that witness’s testimony in court)

Question 17

what is the difference between a contradiction and an inconsistent statement?

Answer 17

“contradiction” vs “inconsistent statement”
 contradiction: inconsistent testimony given at the same trial by any witness
 inconsistent statement: an OOC statement given by this witness

Question 18

what is the rule regarding impeaching a witness by showing lack of capacity? what would be some examples? can extrinsic evidence be admitted?

Answer 18

o rule: a pty can attack a witness’s credibility by showing defects of capacity to perceive, recall, or relate to the matter at issue

 ex) witness suffered from an infirmity that affected his ability to perceive the event; the witness suffers from an infirmity at the time of testifying; or the witness suffered from an intervening disability that affects his memory
 ex) establishing that the witness lacked the opportunity to observe the underlying event

o extrinsic evidence to prove defect of capacity: admissible, subject to R403

Question 19

what is the rule on using religious beliefs to attack credibility?

Answer 19

• rule: evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility
o **will not apply when using these beliefs/opinions to show something else like bias or defects of capacity even when it affects credibility in some other way

Question 20

what are the three types of impeachment by evidence of a criminal conviction? how detailed can you get? is extrinsic evidence allowed? what is our Luce rule?

Answer 20

(1) felony convictions of any witness except for a criminal defendant
(2) felony convictions of a criminal defendant
(3) crime of any witness involving a false statement/dishonest act

• details surrounding the conviction: the impeaching pty should ordinarily be permitted to establish the nature, time, and place of, and the punishment for the conviction
o **however, details of the crime may not be explored

no limits on use of extrinsic evidence

o rule: in order to raise and preserve a claim of improper impeachment with a prior conviction, a defendant must testify (Luce)

Question 21

what is the rule for using felony convictions of any witness except a criminal defendant to attack credibility?

Answer 21

felony convictions of any witness except a criminal defendant
 generally admissible (subject to 403)
 can only be considered for truthfulness
 applies in civil and criminal cases

Question 22

what is the rule for using felony convictions of a criminal defendant to attack credibility? what is the balancing test and its factors?

Answer 22

 generally inadmissible unless you can show that the probative value of the evidence outweighs its prejudicial effect
 balancing factors: (burden shifts to prosecutor)
• the impeachment value of the prior crime

• the point in time of the conviction and the witness’s subsequent history
• the similarity between the past crime and the charged crime
• the importance of the defendant’s testimony
• the centrality of the credibility at issue

Question 23

what is the rule for using the crime of any witness involving a false statement/dishonest act to attack credibility? what are some examples of these crimes? what crimes do not fall into this category?

Answer 23

 automatically admissible if it qualifies (no balancing test)
 need not be a felony conviction

	crimes that fall INSIDE this category:
•	perjury
•	fraud
•	embezzlement
•	false pretense
•	counterfeiting
•	tampering
•	theft by check
•	failure to file income tax returns
•	receiving stolen ppty

	crimes that fall OUTSIDE this category
•	crimes of violence
•	theft
•	burglary
•	drug use

Question 24

what are the elements of the following caveats to using criminal convictions to attack credibility?

10 year rule

effect of a pardon

juvenile adjudications

pendency of appeal

Answer 24

limit on using the evidence after 10 years following the conviction or release from confinement for it (whichever is later)
o evidence of this conviction is only admissible if:
 (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect, AND
 (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use

• (c) effect of a pardon/annulment/certificate of rehabilitation
o evidence of this conviction is not admissible if:
 (1) the conviction has been the subject of one of the above based on a finding of rehabilitation AND the witness has not been convicted of a subsequent felony, or
 (2) the conviction has been the subject of one of the above based on a finding of innocence

• (d) juvenile adjudications
o evidence of this conviction is only admissible if:
 (1) it is offered in a criminal case,
 (2) the adjudication was of a witness other than the defendant,
 (3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility, AND
 (4) admitting the evidence is necessary to fairly determine guilt/innocence
o **this evidence is not limited to showing the witness’s character for truthfulness

• (e) pendency of appeal – a conviction that satisfies this rule is admissible even if an appeal is pending
o evidence of the pendency is also admissible (ex – by other side on rebuttal)

Question 25

what is the rule regarding impeachment by the witness’s prior (in or out-of-court) statement? is extrinsic evidence allowed? what is the key point to remember when examining these statements?

Answer 25

1) when examining a witness about the witness’s prior statement, a pty need not show it or disclose its contents to the witness, but the pty must, on request, show it or disclose its contents to an adverse pty’s attny

(2) extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is (at some point in time) given an opportunity to explain/deny the statement and an adverse pty (at some point in time) is given an opportunity to examine the witness about it, or if justice so requires
o **just like contradictory statements: if the inconsistency relates to a collateral matter, extrinsic evidence may not be offered to prove that the prior statement was made

**key point: is this statement hearsay??