Character Evidence Flashcards
What is character evidence?
Evidence that refers to a person’s general propensity or disposition
(i.e., honesty, fairness, peacefulness, violence)
Character evidence is admissible in a civil case if
character is directly in issue
Character evidence is inadmissible in a criminal trial if first offered by the prosecution
as circumstantial evidence to show that a defendant is likely to have committed the crime
List (3)
When is character evidence offered as substantive evidence ? other purposes?
Substantive
- Direct character - When a person’s character is directly at issue (so the person’s character is a central part of the claim or defense)
-
Circumstance - To serve as circumstantial evidence of how the person probably acted in the circumstance which has created the case
- aka propensity evidence and conduct in conformity with character
Other
- Impeachment - impeach W by offering evidence of W’s bad character for truthfulness
When can P offer evidence of D’s bad character to show conduct in conformity?
after the defendant has “opened the door”
List (2)
What are P’s testimony method of rebutting D’s character evidence?
- Reputation or Opinion - P calls own character witness to provide testimony about D’s bad character
- Specific Acts - ask W about specific acts of the D which show the D’s bad character but are INTENDED to prove W’s lack of knowledge.
What is the purpose of the P asking the D’s Witness about the D’s specific acts?
To prove that the character witness lacks knowledge about D.
(not to prove D’s bad character)
Can P use extrinsic evidence of misconduct to impeach W’s statements?
NO
- extrinsic evidence of bad acts involving un/truthfulness not admissible (ie fraud)*
- (rationale: dont need the extrinsic bc witness will prove that they are an unreliable witness)*
- ex: D on trial for murder. W says D very peaceful. P asks “did you know D shot someone 3 yrs ago?”*
If W says yes, then proves that W knew D was in fact not peaceful. IMPEACHED
If W says no, then W proves that he does NOT know D that well. IMPEACHED
How is Q phrased for opinion testimony
Did you know?
How is Q phrased for reputation testimony
Have you heard?
List (2)
When can the D offer evidence about the victim’s bad character trait?
- Innocence - when victim’s bad character is relevant to show D’s innocence, usually in self-defense matters
- State of Mind - for non-propensity purposes to show D’s state of mind at time act occurred
What type of testimony can the D offer about the victim’s bad character trait?
Reputation or Opinion testimony
List (2)
How can the P rebut D’s introduction of victim’s bad character? Through what type of testimony?
Reputation or opinion testimony of:
- Victim’s good character for same trait
- D’s bad characte for same trait
What type of testimony can the D offer about the victim’s bad character trait?
vs.
What type of testimony can P offer to rebut Defendant’s character evidence?
vs.
What type of testimony can P offer to rebut victim’s bad character trait
D: reputation or opinion - D is offering testimony about the victim
P: reputation, opinion, specific acts - P is offering testimony about Defendant’s character evidence
P for V: reputation or opinion - P offering testimony about victim
Other than victim’s good character, what other evidence can P offer in a self-defense case regarding the victim’s character
Can offer evidence regarding Victim’s good character for peacefulness BUT ONLY WHEN IT IS A HOMICIDE CASE !!!!
ANY kind of evidence from D’s side that says victim was the first aggressor opens door for P’s to introduce evidence about V’s good character for peacefulness.
Is evidence of a rape victim’s past sexual behaviour or sexual disposition admissible?
NO
unless exception
Under what exceptions can a rape victim’s sexual behavior or sexual disposition be admissible in CRIMINAL cases?
- To prove that someone OTHER than the D is the source of semen, injury, or other physical evidence related to Victim’s assault.
- Sexual behavior between D and V admissible
- by V (P) for any reason
- by D to prove consent
List (2)
Under what exceptions can a rape victim’s sexual behavior or sexual disposition be admissible in CIVIL cases?
Can only admit evidence if victim has placed their reputation in controversy and
- probative value outweighs risk of prejudice or harm to victim
- not excluded by other rules
ex: victim says rape was particularly traumatic bc of belief in pre-marital abstinence + has no prior sexual experiences, so victim brings their “reputation in controversy” and the probative value of the victim’s claim will be measured with this belief. If victim has had prior sex then the claim that rape was traumatic because of the beliefs, will hold less value
Is character evidence admissible in CIVIL cases?
NO
unless defamation, child custody, neg hiring, fraud and can use reputation, opinion, and specific acts
List (4) “FC. NeD (like fuck Ned)
When is character evidence admissible in civil cases?
(IOW: in what type of civil cases is character evidence admissible?)
When character of person at issue
- Child Custody
- Fraud
- Negligent hiring or entrustment (trusting someone with something)
- Defamation
AND ALL FORMS of CE will be admissible (reputation, opinion, specific acts) as long as RELEVANT
What type of testimonial character evidence is permissible in civil cases
Reputation, Opinion, AND Specific acts
Is evidence of a person’s past/other crimes admissible to show conduct in conformity with the crime currently at issue in the case?
NO, unless exception:
NOT relevant to D’s propensity to commit the crime at issue
hint: think relevance
When can evidence of a person’s past/other crimes be admissible?
If it is NOT relevant to D’s propensity to commit the crime at issue
What type of evidence about a D’s prior bad acts is admissible?
hint think propensity
MIMIC evidence + any other evidence as long as NOT being used to show D’s propensity to commit crime charged
M: motive
I: intent
M: (absence of) mistake
I: identity
C: common plan or scheme / modus operandi
List (2)
What is required to make past/other crimes admissible?
-
Sufficient MIMIC evidence to support a jury finding that D committed the new crime based on evidence from previous crimes
- and remember only MIMIC + other non-propensity evidence
- probative value > unfair prejudice
List (2)
Notice of MIMIC for criminal trials
- P has to give pre-trial notice of the evidence that will be offered to the D.
- P has to include non-propensity purpose + reasoning supporting that purpose
hint: think of D
MIMIC evidence is admissible ONLY IF
The D is contesting the non-character issue (i..e. identity, intent)
Ex: P suing D saying that D robbed store with silver gun and red hoodie. D is contesting that he was the one who robbed the store with a silver gun and red hoodie. P offers evidence that D had robbed a store 2 months ago with a silver gun and red hoodie (offering ID)
MIMIC is offered for what type of purpose?
non-propensity
Is MIMIC evidence admissible even if D doesnt “open the door” to character evidence? Why?
YES, bc MIMIC is being offered for non-propensity purposes
What type of evidence is MIMIC evidence
non-propensity evidence
When is a D’s act of sexual assault admissible in a criminal or civil case?
When the D is being accused of committing sexual assault in the current case
list (5)
Character evidence rules for criminal case
-
No propensity evidence:
- P cannot offer reputation or opinion evidence of D’s bad character if purpose is to show conduct in conformity with that bad character and probably committed crime inn Q
- D can offer reputation or opinion evidence of a relevant character trait to establish he acted in conformity with that character and did not commit that crime
- If D offers evidence of good character, D opens the door
- P can rebut with reputation or opinion evidence of bad character
- Evidence of prior crime/prior bad acts are NEVER admissible to show D acted unlawfully again and committed the crime charged
- BUT can be admissible to show non-propensity (MIMIC)
- If a party testify they automatically place their character for un/truthfulness at issue
list (4)
Character evidence rules for civil cases:
- NO propensity evidence: inadmissible to show that the person acted in accordance with a character trait on a particular occasion unless character is directly an issue or essential element of P’s claim or defense
- Admissible if character an issue (defamation, negligence, child custody, fraud
- Admissible if introducing for non-propensity evidence and relevant to that evidence
- If a party testify they automatically place their character for un/truthfulness at issue
when can the prosecution introduce character evidence in a criminal trial
after the defendant has “opened the door”
ie D can offer evidence about his good character and P can rebut that by introducing evidence of D’s bad character for the same trait
how many days notice must be provided when a party intends to offer evidence of sexual assault or child molestation
15 days
