character evidence

Question 1

Florida Distinction From FRE

Answer 1

In Florida, character evidence cannot be proved by REPUTATION evidence only.

Character evidence of the victim (after defendant has attacked character trait of victim) can only be rebutted with REPUTATION evidence of the same trait only.

Question 2

Character Evidence in a Civil Trial

Answer 2

Character evidence is generally not admissible to prove the conduct of a person.

Character evidence may be admissible when character is directly in issue, meaning proof of a person’s character is an essential element of a claim or defense.

Question 3

Character Evidence in a Criminal Trial

Answer 3

generally only the accused can initiate for propensity reasons. The accused may open the door to introduce evidence of his own good character for a particular relevant trait, or to show the victim’s bd character for a particular relevant trait.

Question 4

Rape Shield Statute

Answer 4

(1) Prohibits reputation evidence relating to a victim’s prior sexual conduct.
(2) Limits the admissibility of evidence of specific instances of prior consensual sexual activity between victim and persons OTHER than defendant.
* Evidence is admissible only after an IN CAMERA proceeding if:
(1) it tends to prove that the defendant was not the source of semen, pregnancy, or disease; or
(2) there is a similar pattern of conduct by the victim that tends to establish consent

**applies to criminal sexual battery and human trafficking prosecution

Question 5

Propensity Evidence

Answer 5

Generally NOT admissible.

Exceptions:

(1) when character is directly at issue
(2) character is an essential element in a claim or defense (i.e. defamation)
(3) Habit (when applicable)

Question 6

Specific Prior Bad Acts

Answer 6

Generally inadmissible in Florida, when no conviction resulted. Prior untruthful acts are NOT admissible in Florida.

Exceptions:

(1) MIMIC
(2) Habit
(3) Impeachment by conviction

Question 7

MIMIC

Answer 7

Motive, Intent, Mistake (absence of), Identity, Common plan or scheme, Guilty conscience.

Admissible if:

(1) acts are STRIKINGLY SIMILAR to the act at issue in the case and
(2) share some UNIQUE CHARACTERISTIC or combination of characteristics that set them apart.

• The prosecution must give 10 DAYS NOTICE of intent to use other-acts evidence
• Evidence of a defendant’s prior acts of sexual assault or child molestation (child must be 16 or younger) is admissible only in CRIMINAL cases where the defendant is accused of committing the same type of act.

Question 8

Habit

Answer 8

Defined as a regular response to a repeated specific stimulus.

Evidence is only allowed to CORROBORATE. Unlike Federal Rules, in Florida, a person’s habit is not automatically admissible to prove a person acted in accordance with the habit. The evidence is admissible only to CORROBORATE other evidence that shows the habit occurred at the relevant time.

*In order to be admissible there must be (1) independent evidence (2) that the person followed the habit on the occasion at issue

*Exception:
Florida allows uncorroborated evidence of the routine practice of an organization to prove that the organization acted in accordance with its routine practice.

Question 9

Impeachment by Conviction

Answer 9

A witness may be impeached with

(1) Crime involving dishonesty or false statement
(2) any felony

**The court has discretion to exclude ANY prior conviction, even if it involves dishonesty or false statement.

**Court may consider Rule 403 (balancing test) with ALL convictions, regardless of the identity of the witness.