Character Evidence

Question 1

Mercy Rule

Answer 1

The mercy rule allows a criminal defendant to introduce evidence that his/her character is inconsistent with the crime charged—e.g., a defendant’s character for peacefulness is inconsistent with a charge of battery.

But under this rule, the defendant only may do so through:

1) reputation testimony – testimony by someone sufficiently familiar with the defendant’s reputation among associates or in the community or
2) opinion testimony – testimony sharing an opinion on the defendant’s character that is based on personal knowledge and familiarity with the defendant.

Question 2

What are the effects of a D “opening the door”?

Answer 2

“A criminal defendant opens the door for the prosecution to introduce evidence of the defendant’s bad character by introducing (1) evidence of his/her own good character for a trait pertinent to the charged crime or (2) evidence of the alleged victim’s bad character.”

Under FRE 404, a prosecutor generally may not introduce evidence of a criminal defendant’s bad character to show that the defendant acted in conformity with that character on the occasion in question.

However, a defendant “opens the door” to such evidence by offering:

1) evidence of the defendant’s own good character for a trait pertinent to the charged crime, in which case the prosecution may offer evidence to rebut it or
2) evidence of the alleged victim’s bad character—e.g., to show that the victim was the first aggressor—in which case the prosecution may offer evidence to rebut it or offer evidence of the defendant’s same trait.

Question 3

Once the D’s character witness has testified, the prosecution may:

Answer 3

● cross-examine the witness about a specific act committed by the defendant that relates to the trait in question or

● call another witness to provide reputation or opinion testimony on the defendant’s corresponding bad-character trait.

Questions about specific acts committed by the defendant are permitted because knowledge (or lack thereof) of the defendant’s past behavior goes to the witness’s credibility.

But such questions must be asked by the prosecution in good faith. This means that questions based on a hunch will not suffice—even when the hunch proves accurate.

Question 4

Noncharacter purposes for admitting crime or bad act

MIMIC

Answer 4

“Evidence of a criminal defendant’s prior crimes or bad acts may be admissible for relevant, noncharacter purposes (i.e., MIMIC evidence). However, this and other relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”

Motive

• To show purpose for committing charged crime

Intent

• To establish guilty mind or negate good faith

Absence of Mistake

• To negate mistake or accident & prove deliberate act

Identity

• To connect defendant to crime with unique pattern of behavior (ie, criminal signature)

Common plan or scheme

• To show preparation or planning

Other

• To show knowledge of crime, opportunity to commit crime, consciousness of guilt, etc.

Question 5

Impeaching with a criminal conviction

Answer 5

Any witness can be impeached with evidence of a prior conviction for a crime involving dishonesty (e.g., embezzlement) if the conviction occurred within the previous 10 years.

Question 6

Examples of Character as Essential Element

Answer 6

1. Defamation
   a) Injuring plaintiff’s reputation with spoken (slander) or written (libel) false statement
   b) character at issue: Plaintiff
2. Negligent Entrustment
   a) Injuring plaintiff by negligently entrusting dangerous article to reckless or incompetent person
   b) Character at issue: Person Entrusted
3. Child Custody
   a) Modifying child custody, visitation, or other parental rights
   b) Character at issue: Parent or Guardian
4. Entrapment
   a) Criminal defense alleging government inducement & defendant’s lack of predisposition to commit crime
   b) Character at issue: Defendant
5. Negligent Hiring
   a) Injuring plaintiff by negligently hiring person of dangerous or untrustworthy character
   b) Character at issue: Hiree

Question 7

Character Evidence is an Essential Element

Answer 7

“Character evidence is admissible if a person’s character is an essential element of a civil claim, criminal charge, or asserted defense.”

Character evidence is generally inadmissible when it is used to prove that a person acted in conformity with his/her character during the litigated event.

But such evidence is admissible substantively in rare instances when character (or a character trait) is an essential element of a civil claim, criminal charge, or asserted defense—e.g., in a defamation action.

In such cases, character evidence can be introduced by any party through either:

i) reputation or opinion testimony on that essential character trait OR
ii) specific instances of conduct (e.g., prior instances of adultery) demonstrating that trait.

Question 8

Habit Evidence

Answer 8

Evidence of a person’s habit or an organization’s routine practice is admissible to prove that the person or organization acted in accordance with that habit or practice on a particular occasion.

A habit is a person’s routine reaction to a specific set of circumstances that is semiautomatic in nature and is considered highly probative of the person’s conduct on a particular occasion.

NOTE: A witness who is familiar with the person—and his/her habit—may testify to prove the existence of that habit. The witness need not have been present at the event in question to do so.

Question 10

Who has the burden regarding the introduction of a conviction for a felony not involving dishonesty and is not older than 10 years if the defendant files a motion to exclude this evidence?

Answer 10

Here, the defendant since he is opposing the use of such evidence.

Convictions for felonies not involving dishonesty that are no more than 10 years old are admissible against a civil witness unless the party opposing the introduction of the conviction shows that its probative value is substantially outweighed by its prejudicial effect.

Question 11

Is a conviction that is no more than 10 years old and concerns a felony not involving dishonesty admissible against a witness in a civil case?

Answer 11

YES, unless the conviction’s probative value is substantially outweighed by its prejudicial effect.

This is the same standard articulated in FRE 403, which places this burden regarding introduction of the conviction on the party opposing its admission.

Question 12

Character Evidence

In General

Answer 12

Character evidence, which is generalized information about a person’s behavior—such as information that the defendant is a criminal, a bad parent, or an inattentive driver—is generally inadmissible.

Question 13

Character Evidence

• Civil Cases*
• Inadmissible to prove conforming conduct*

Answer 13

a. Inadmissible to prove conforming conduct

In a civil case, evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. FRE 404(a)(1).

Example: A plaintiff cannot introduce evidence that the defendant is a reckless driver to prove that the defendant drove recklessly on the day in question.

Evidence concerning past sexual assault or child molestation by a defendant in a case in which the claim for relief is based on the defendant’s sexual misconduct is admissible.

• This includes evidence of specific acts. FRE 415.
• Evidence concerning the past sexual behavior of a victim of sexual misconduct (e.g., rape) is admissible in limited circumstances.

Question 14

Character Evidence

• Civil Cases*
• Character at issue*

Answer 14

b. Character at issue

Character evidence is admissible when character is an essential element of a claim or defense, rather than a means of proving a person’s conduct.

Character is most commonly an essential element in:

1. defamation (character of the plaintiff),
2. negligent hiring(character of the person hired)
3. negligent entrustment (character of the person entrusted), and
4. child-custody cases (character of the parent or guardian). FRE 404(b); 405.

Question 15

Character Evidence

• Criminal Cases*
• By Prosecution – Defendant’s Bad Character*

Answer 15

a. Defendant’s character
1) By prosecution—defendant’s bad character

In general, the same rule that applies in a civil action applies to the prosecution in a criminal case.

The prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. FRE 404(a)(1).

Example: A defendant is charged with brutally murdering his wife. The prosecution may not present evidence of the defendant’s violent nature.

Question 16

Character Evidence

• Criminal Cases*
• By Defendant – Defendant’s Good Character*

Answer 16

2) By defendant—defendant’s good character
* A defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged.

Example 1: A defendant is charged with brutally murdering his wife. The defendant may present evidence of his peaceable nature.

• The defendant’s character evidence must be pertinent to the crime charged.

Example 2: A defendant is charged with embezzling money from her employer. The defendant may not present evidence of her peaceable nature.

Question 17

Character Evidence

• Criminal Cases*
• Defendant “Opens the Door”*

Answer 17

3) Defendant “opens the door”

Although the prosecution cannot introduce evidence of the defendant’s bad character, the defendant makes his character an issue in the case if he offers evidence of his good character.

• When the defendant “opens the door,” the prosecution is free to rebut the defendant’s claims by attacking the defendant’s character. FRE 404(a)(2)(A).

Defendant as witness: The defendant does not “open the door” to character evidence merely by taking the stand, but as a witness, the defendant is subject to impeachment.

In addition, the defendant “opens the door” for the prosecution to introduce evidence of his bad character by introducing evidence of the victim’s bad character.

• The prosecution’s evidence regarding the defendant must relate to the same character trait (e.g., violence) that the defendant’s evidence about the victim did. FRE 404(a)(2)(A).

Question 18

What ways can a defendant “open the door” to character evidence?

Answer 18

1. Defendant offers evidence of his good character
2. Defendant introduces evidence of the victim’s bad character.
   * The prosecution’s evidence regarding the defendant must relate to the same character trait (e.g., violence) that the defendant’s evidence about the victim did.

Question 19

Character Evidence

• Criminal Cases*
• Victim’s Character – By Defendant – V’s bad character*

Answer 19

b. Victim’s character
1) By defendant—victim’s bad character

A criminal defendant may introduce reputation or opinion evidence of the alleged victim’s character when it is relevant to the defense asserted.

• (Note: The introduction of evidence of the character of an alleged victim of sexual misconduct in a criminal case, however, is subject to significant limitations)

Example: A defendant is charged with assault. The defendant may offer evidence of the alleged victim’s character trait of violence to support a claim of self-defense by showing that the alleged victim was the aggressor.

Question 20

Character Evidence

• Criminal Cases*
• Victim’s Character – By Prosecution – V’s good charac*ter

Answer 20

2) By prosecution—victim’s good character

Generally, the prosecution may offer rebuttal evidence of the alleged victim’s good character only after the defendant has introduced evidence of the alleged victim’s bad character.

Example: A defendant is charged with assault. The defendant presents evidence of the alleged victim’s character trait of violence to support a claim of self-defense.

• The prosecution may then rebut the defendant’s evidence with evidence of the alleged victim’s character trait of peacefulness.
  
  • Note: The prosecution may also offer evidence of the defendant’s character trait of violence.

***In a homicide case, the prosecution may also offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor.***

Question 21

Character Evidence

• Criminal Cases*
• Methods of Proving Character*

Answer 21

Proof of character, whether good or bad, offered by any party generally must be in the form of:

i) reputation testimony or
ii) opinion testimony.

Reputation evidence is defined as a defendant’s reputation in the community.

• “Community” includes people with whom the defendant engages on a regular basis.

Question 22

What is reputation evidence?

Answer 22

Reputation evidence is defined as a defendant’s reputation in the community.

• “Community” includes people with whom the defendant engages on a regular basis.

Question 23

Character Evidence

• Criminal Cases*
• Impeachment*

Answer 23

Impeachment

Character evidence is admissible for impeachment purposes.

Character evidence about the witness may be introduced to show that the witness is not a person whose testimony should be believed.

• In such instances, the witness’s character for untruthfulness is relevant.
  
  • When permitted, the witness’s testimony may be supported by testimony as to the witness’s character for truthfulness.

Question 24

Character Evidence

Specific (Bad) Acts

Answer 24

Evidence of a specific act is not admissible to prove a person’s character in order to show that the person acted in accordance with that character on a particular occasion.

Example 1: A driver is sued to recover for injuries inflicted on the P allegedly due to the driver’s negligent failure to stop at a stop sign. The P cannot introduce testimony by a witness that the driver failed to stop at the same stop sign the day before the accident in question for the purpose of proving that the driver failed to stop at the stop sign on the day of the accident.

However, evidence of a person’s conduct (e.g., crime, other bad act) is admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

• MIMIC
• Example 2: A defendant is charged with murder. Evidence that the defendant was previously convicted of robbery is likely admissible if the murder victim was the prosecutor on the robbery case against the defendant. Such evidence establishes the defendant’s motive for killing the victim.

Question 25

Character Evidence

• Specific (Bad) Acts*
• Advance notice*

Answer 25

When a criminal defendant requests, the prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial.

• Such notice must generally be given before trial, but it can be given during trial when the court, for good cause, excuses the lack of pretrial notice.

Question 26

Character Evidence

• Specific (Bad) Acts*
• Introduction of Specific Acts as Character Evidence*
• Civil Cases*

Answer 26

When character evidence is admissible as evidence in a civil case (e.g., evidence that is an essential element of a claim or defense), it may be proved by:

1. Specific instances of a person’s conduct
2. Reputation Testimony
3. Opinion Testimony

Question 27

Character Evidence

• Specific (Bad) Acts*
• Introduction of Specific Acts as Character Evidence*
• Criminal Cases*

Answer 27

Criminal Cases:

Generally, when character evidence is admissible as evidence in a criminal case (e.g., evidence of good character introduced by the defendant), specific instances of a person’s conduct are not admissible.

• Character must be proved by either reputation or opinion testimony.

Non-propensity use:

• When a defendant’s bad act is not used to show the defendant’s criminal propensity but for another purpose (e.g., motive, identity), such instance of conduct may be admissible for that purpose.

Essential element of the crime charged:

• When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime.

Question 28

In a criminal case, when is evidence of defendant’s specific acts admissible?

Answer 28

1. Non-propensity use: to show motive, identity, etc.
2. Essential Element of the crime charged: W**hen character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime.

Question 29

Character Evidence

• Specific (Bad) Acts*
• Introduction of Specific Acts as Character Evidence*
• Cross-examination of character witness*

Answer 29

Cross-examination of character witness

When a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying.

Rule 403: Keep in mind that evidence of a bad act that is otherwise admissible is especially subject to challenge under Rule 403, which permits the court to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice, etc.

Question 30

Character Evidence

Habit Evidence

Answer 30

Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion.

Unlike character evidence, which is a general description of a person’s disposition, habit evidence indicates a person’s particular routine reaction to a specific set of circumstances to the point of being semi-automatic in nature.

• The proponent has the burden of establishing that the evidence is inflexibly regular and proven by an adequate and representative sample.

Example: A person drives the same route to work and parks in the same spot every day.

Question 31

Character Evidence

Does habit evidence require corroboration or an eyewitness?

Answer 31

NO.

Habit evidence may be admitted without corroboration and without an eyewitness.

Habit is more specific than character evidence.

On the MBE, words like “always” or “every time” generally refer to habit

whereas “often” or “frequently” are more likely to imply character evidence.

Question 32

When is evidence offered to prove a victim’s sexual conduct or predispositioin admissible in a civil case?

Answer 32

Evidence offered to prove a victim’s sexual conduct or predisposition is generally not admissible in a civil proceeding involving alleged sexual misconduct, such as a sexual harassment action.

Such evidence may be admitted, however, when the court determines at an in camera hearing that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 33

Curative Admission

Answer 33

When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence.

Known as a curative admission, such evidence can be admitted at the court’s discretion when necessary to remove unfair prejudice.

Question 34

Curative Admission

Is the failure to object to inadmissible evidence determinative of whether the party was unfairly prejudiced?

Answer 34

A court has discretion to admit additional evidence to rebut previously admitted inadmissible evidence even if the party admitting the additional evidence failed to object to the previously admitted evidence.

The failure to object is one a factor to be considered in determining whether the party was unfairly prejudiced, but it is not determinative.

Question 35

When are a defendant’s past crimes or other wrongful acts admissible?

Answer 35

A defendant’s past crimes or other wrongful acts are not admissible to show his criminal propensity, but they are admissible as circumstantial evidence of motive, intent, absence of mistake, identity, or common plan or scheme (the “MIMIC” rule).

Example:

In this case, the man denied that he was the individual who was streaking through the gym on May 5, so the testimony of the manager that he was the individual who did a similar act the day before is relevant to the issue of the identity of the May 5 streaker.