Character and Related Concepts Flashcards
Admissibility of Character
Comes up in three situations
- Witnesses bad character for truthfulness only to impeach the witness
- In CIVIL CASES it is admissible when character is an essential element of the case.
- In CRIMINAL CASES to prove conduct in accordance with character at the time the event occurred.
- In CIVIL CASES it is admissible when character is an essential element of the case.
When is it an essential element of the case?
(NEVER in criminal cases)
(i) When is it an essential element of the case?
(1) Civil: It is an essential element in cases involving:
(a) Negligent entrustment or hiring
(b) defamation
(c) child custody
(2) Method of proving character in this instance?
(a) Reputation
(b) Opinion
(c) Specific Acts
(ii) Besides the above three scenarios, remember the character evidence is inadmissible to prove the someone acted in accordance with their character at the time of the event.
- In CRIMINAL CASES to prove conduct in accordance with character at the time the event occurred.
Generally, character is inadmissible in the prosecutor’s case in chief to prove that the defendant acted in conformity with his own character.
However, the defendant in a criminal case may introduce evidence of a pertinent (relevant) character train to prove he acted in conformity with this character at the time in question. through:
(1) Reputation or
(2) Opinion about him
- The witness for the defense cannot discuss specific acts
- the def does NOT put his general character in issue simply because he testifies (he does put his character for truthfulness at issue)
After the defendant “opens the door” by putting his character in issue, the prosecutor can then rebut the defendant’s testimony in one of three ways:
(a) Reputation: Calling its own witnesses to testify about the defendant’s reputation or
(b) Opinion: Calling its own witness to testify about their opinion to contradict defendant’s witnesses.
(c) Specific Acts: Cross-examining the defendant’s witnesses by asking about specific acts:
(i) The purpose is to impeach them.
(ii) the prosecutor will ask quetions like, “Have you heard…” “did you know” “were you aware of”
(iii) However, if the def’s witnesses does not admit that a specific act occurred no extrinsic evidence may be offered to prove it.
Three Special Character Evidence for the Following Three kinds of cases
- Self Defense
- Homicide
- Sexual Misconduct
Special Rule of Self-Defense Cases
The criminal defendant may introduce the victim’s violent character to prove that the victim acted in conformity with their character (that is as circumstantial evidence that the victim was the initial aggressor).
He can do this by reputation or opinion
The prosecution may rebut by introducing:
(1) Reputation or opinion evidence of the victim’s good character
(2) Reputation of opinion evidence of the defendant’s character for iolence.
MICHIGAN - Rule of self-defense cases: only allows evidence of the victim’s violent character in criminal homicide cases.
Special Rule for Homicide Cases
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.
Special Rule of Sexual Misconduct case - Victim’s Sexual Disposition
Evidence to prove victim engaged in other sexual behavior or evidence offered to prove the victim’s sexual disposition is not admissible in a civil or criminal proceeding unless of the exceptions applies:
In a Criminal Case
- Evidence of specific instances of a victim’s sexual behavior to prove that someone other than the defendant was the source of semen, injury, or other physical evidence.
Evidence of specific instances of a victim’s behavior with defendant to prove consent; and
- Evidence whose exclusion would violate the def’s constitutional rights (love triangle)
In a Civil Case
- The court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition of 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 ony if the victim has placed it in controversy.
Special Rule for cases about prior sexual misconduct of the defendant.
In criminal or civil cases 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 including that he acted in accordance w/his character. The prosecutor/plaintiff can offer in specific acts - not reputation or opinion.
Disclose at least 15 days before trial or at later time for good cause.
Special Michigan Rules
These two rules allow character evidence to come in to prove the defendant acted in accordance with his character:
- Sex offense against minors
- Domestic Violence Exception
Sex Offense against Minors
(criminal cases)
Evidence that the defendant committed another sex offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. The prosecuting attorney shall give notice and disclose the evidence 15 days before trial if he plans on using evidence.
Only specific acts are allowed. Reputation and opinion evidence is not. This is still subject to the 403 balancing test.
Domestic Violence Exception
(Criminal Cases)
Evidence of the defendant’s commission of other acts of domestic violence is admissible for any purpose for which is relevant. The prosecuting attorney shall give notice and disclose evidence 15 days before trial.
- if the act occurred more than 10 years before the charged offense, it is inadmissible unless it is in the interest of justice to admit it.
- Only specific acts are allowed
- This is still subject to the 403 test.
Habit & Routine Practice
Evidence of a person’s habit or an organization’s or business’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. This evidence may be admitted regardless of whether it is corroborated or whether there was an eyewitness.
Habit is a regular response to a particular set of circumstances
Distinguish from Character Evidence: Habit and Routine Practice
Ashley has two glasses of wine every night at 9pm with her BF at her BF’s house. This can be used to show I wasn’t at the crime scene but it cannot be used to show that she drinks too much.
Remember habit requires that it is a “regular response” to any particular set of circumstances.
Character evidence look for “careless, reckless, drunkard”
Habit evidence look for “Every ______ (day, week, time), always, habitually, regularly.”
Industrial Custom
A plaintiff can use habit evidence to show the custom in a particular industry if it is trying to establish the appropriate standard of care.
(1) First, establish the custom in the industry
- custom is evidence of the appropriate standard of care.
(2) Second, show that the party deviated from the custom
Other crimes or bad acts to prove something else other than character evidence (which is not allowed)
MIMIC
(used in criminal & civil cases)
A defendant’s prior bad acts may be admissible for another purpose, such as proving MIMIC
M - Mimic
I - Intent
M - Mistake
I - Identity
C - Common scheme or plan, including preparation
NOTE - this only applies when a party wants to show a person’s PRIOR BAD ACT to prove something that is relevant to the current prosecution.
How to prove MIMIC Evidence
(1) By conviction, (2) by witnesses - the prosecution only has to produce enough evidence so that a reasonable juror could conclude that the def committed the prior bad act in question.
MICHIGAN ESSAY DISCUSS
(1) If the evidence is relevant for a proper purpose (not propensity but MIMIC)
(2) If it is relevant and
(3) Whether the evidence passes the 403 test (this is, the danger of unfair prejudice must not “substantially outweigh” the probative value.
