Character Evidence Flashcards
Explain 404(a)
(1) Provides a general exclusion of character for propensity
(2) Creates exceptions that allow D to open the door to offer evidence of D/V’s PERTINENT traits
(3) Exception for W’s character allowed as determined by 607/608/609
What are the don’t forgets for 404(a)
- Character not for propensity is fair game (e.g. child custody and the like)
- The trait must be pertinent for D to be able to open the door and introduce it.
Explain 404(b)
(1) Prohibition on use of past crimes/wrongs as C4P
(2) Past crimes/wrongs MAY allowed to prove motive or other non-C4P purpose
(3) Notice required in a criminal case if evidence of past wrong is to be used
What are the key don’t forgets for 404(b)?
The “may” in 404(b)2 is read to infuse a 403 analysis into any evidence sought to be admitted under 404(b)2
What is the scope of 405?
Only applies when a person’s character or character trait may be proven
405 supplies restrictions on specific acts
Explain 405
405(a) When proving character, Rep/Opinion are always allowed. Specific acts allowed on cross of a W already on the stand
405(b) When a person’s character or character trait are an essential element of the charge/claim/defense, specific acts are allowed
Key don’t forgets for 405
405 (restrictions on specific acts) only applies when proving character or a character trait.
Does not apply when past acts are proven for some other purpose (e.g.404(b)2 to prove motive)
Explain 406
Evidence of habit is allowed (and is not considered to be proving character
Explain 412?
Can’t offer evidence of V’s sexual disposition or past sexual acts as substantive or impeachment evidence unless an exception applies
What are the exceptions to 412(a) for criminal cases?
The following evidence MAY (implied 403) be admitted:
- specific instances to prove someone other than D was source of physical evidence
- specific instances of V’s prior sex with D if offered by D to prove consent or if offered by P
- required by the constitution
What are the exceptions to 412(a) in civil cases? (and the key limitation on that exception)
The following evidence MAY (implied 403) be admitted:
- evidence of V’s sexual behavior/predisposition if probative value substantially outweighs harm to any victim and of unfair prejudice to any party.
Court may only admit evidence of V’s reputation if V placed it in controversy.
When do 413-414 apply? When does 415 apply?
In criminal cases were D is accused of sexual assault or child molestation and has a history of the same
Explain 413-414
(a) In criminal cases where D is accused of sexual assault or child molestation and has a history of the same (regardless if only alleged or actually proven)
(b) disclosure of the proffered evidence to D in advance required
What are the key don’t forgets about 413-414?
To admit the prior history of sexual assault/child molestation, the assailant must actually be the defendant in the case.
No requirement that allegations be proven
Altered 403 test likely applies so that the statute actually makes a difference
Blatant C4P
Explain 415
Applies 413-414 to civil cases. Disclosure requirements apply
Explain 608
Can always attack/support W’s C4T with reputation/opinion testimony, but can’t support until attacked
Can’t use extrinsic evidence to prove C4T unless on cross
What are the key don’t forgets of 608?
The rep/opinion testimony actually has to be probative of C4T.
Extrensic specific acts on cross actually have to be probative of C4T
C4T is pure C4P reasoning
What statute does 608 often interact with?
A party attempting to admit evidence under 404(b) (for substantive purposes) might also try to admit under 608 (to impeach credibility)
Explain 609
Governs Rules for Admission of past crimes to impeach C4T
IF crimen falsi->must admit (no exclusions)
IF crime punishable by >1 year admitted subject to some kind of modified 403 analysis
PLUS exclusions apply for
>10 years ago, pardoned/anulled, juvenile
What are key don’t forgets about 609?
A conviction may be admissible even if pending on appeal
If admitted, must allow parties to present the essential facts about a prior conviction (crime, date, sentence)
Explain 607?
Anyone may impeach a witness
Explain 806
When hearsay is admitted, the declarant’s credibility may be attacked & then supported as if the declarant had been a witness
May admit inconsistent statement/conduct regardless if declarant had a chance to explain or deny
Explain 613
Governs prior inconsistent statements
Extrinsic evidence of W’s prior inconsistent statement only admissible if W has a chance to explain/deny AND adverse party has opportunities to examine W about it
No need to show/disclose prior inconsistent statement to W but must to adverse atty
What are key don’t forgets about 613
prior inconsistent statements are not offered to prove character, so no 608 restrictions
613 does not address the hearsay issue
801(d)(A)(1) allows admission of prior inconsistent statements as substantive evidence if sworn
What are the key limitations on ability to impeach by bias?
401 and 403 are key limitations, but Confrontation clause helps
What is the key limitation on ability to impeach by incapacity?
Impeachment by incapacity is allowed but defense should be ready to object under 608(b) if there are extrinsic specific instances offered to prove character for (un)truthfulness
When does the collateral evidence rule apply?
Impeachment by specific contradiction
What is the collateral evidence rule?
Cannot use EXTRINSIC evidence for impeachment on a COLLATERAL MATTER
(to determine if a matter is collateral, ask “would this evidence be admissible for any purpose other than impeachment by specific contradiction?”)
