Character Evidence

Question 1

Character Evidence - General Concept

Answer 1

• you can’t offer evidence proving a person’s character to support the inference that the person acted in conformity with his character on a particular occasion
• “propensity” evidence is unduly prejudicial
• you CAN offer character evidence though in situations where it’s not offered for propensity (ex: to prove someone is a bad parent in a child custody case)

Question 2

Propensity - Rationale

Answer 2

• can’t use character evidence because we’re concerned with this act in particular, not defendant’s propensity to commit this kind of act
• don’t want jury to deliver its verdict on improper basis (ie. concluding this is the “kind” of person who deserves a finding against them)

Question 3

Rule 404(a) - General

Answer 3

• deals with character evidence
• includes both prohibited uses and exceptions

Question 4

Rule 404(a) - Prohibited Uses

Answer 4

• cannot use character to show propensity
• applies in both civil and criminal trials
• applies n a criminal trial to both the defendant and the victim

Question 5

Rule 404(a) - Exceptions

Answer 5

• character is in issue
• in a criminal case, defendant may offer evidence of defendant’s pertinent trait or alleged victim’s pertinent trait
• prosecution may offer rebuttal evidence in criminal case on the above points
• victim is protected by Rule 412
• homicide case - prosecutor may offer evidence of victim’s alleged peacefulness
• Rule 607 - character of witnesses

Question 6

Character in Issue

Answer 6

• if character itself is an element of the crime, the evidence can come in
• technically not an exception, just a use of character outside the rule (you’re using to prove an element of the crime, not just propensity)
• if character is allowed in, you’re entitled to a limiting instruction that it’s allowed in for the issue part but not for propensity
• ex: defamation, entrapment

Question 7

Rule 404(a)(2)(A)

Answer 7

• in a criminal case, the defendant can offer evidence of the defendant’s pertinent trait
• if this happens, the prosecution may offer rebuttal evidence as to the trait

Question 8

Rule 404(a)(2)(B)

Answer 8

• in a criminal case, the defendant may also offer evidence of the alleged victim’s pertinent trait, subject to the limitations of Rule 412
• if this happens, the prosecution is allowed to offer rebuttal evidence, including both evidence that the victim does not have the trait and evidence that the defendant actually has the trait that was just attributed to the victim

Question 9

Rule 404(a)(2)(C)

Answer 9

• in a homicide case, the prosecution may offer evidence of alleged victim’s trait of peacefulness specifically to rebut evidence that the victim was the first aggressor
• must be clear that the defense is arguing the victim was the aggressor

Question 10

Witnesses and Character

Answer 10

• under Rules 607, 608 and 609, evidence of a witness’s character may be introduced for impeachment purposes

Question 11

Rule 405

Answer 11

Methods of Proving Character
(a) by reputation or opinion
- specific instances of conduct allowed on cross-examination
(b) by specific instances of conduct
- only if character/character trait is an essential element of a charge, claim, or defense

Question 12

Methods of Proving Character - Direct vs. Cross

Answer 12

• direct examination of witness - need to prove character through reputation or opinion
• cross - you’re allowed to bring up specific instances of conduct
  -> you could also theoretically ask questions that undermine the basis for the reputation or the opinion

Question 13

Limitations on Cross-Examination of Character Witness

Answer 13

• can’t call a new character witness to rebut by giving testimony on specific instances - you can ask the witness you’re cross-examining about specific instances, but you have to take whatever their answer is (theory is you’re technically just trying to undermine their testimony, not provide your own)
• you need to have a good faith basis for asking the question about specific instances
• if you ask on cross, it comes in only for impeachment, not substantively (party that initially called the witness is entitled to a limiting instruction)
• you also need to give notice to the judge of the questions you intend to ask on cross

Question 14

Personal Knowledge and Character

Answer 14

• if you are putting on a character witness, you need to establish basis for their opinion or reputation testimony - need to show they have some kind of personal knowledge of the defendant

Question 15

Rule 803(21)

Answer 15

• hearsay exception that allows in evidence of reputation concerning the person’s character

Question 16

Rule 405(b)

Answer 16

• specific instances of conduct used to prove character - this is only okay as direct evidence in circumstances where character is an essential element of a charge, claim, or defense (ie. where character is at issue)

Question 17

Rule 404(b)

Answer 17

Other Crimes, Wrongs, Acts
- usually prior criminal conduct introduced against a criminal defendant (but does not have to be)

(1) not admissible to show propensity
(2) admissible “for another purpose”:

Question 18

Rule 404(b)(2) - Other Purposes

Answer 18

• motive
• opportunity
• intent
• preparation
• plan
• knowledge
• identity
• absence of mistake
• lack of accident
• note that this is a permissive list of examples, not an exclusive list

Question 19

Reverse 404(b)

Answer 19

• question of evidence of someone else’s prior bad acts - arguments for this are usually unsuccessful

Question 20

Connection Between 404(b) and Other Rules

Answer 20

• 403 - can exclude if unfairly prejudicial
• 105 - you’re entitled to limiting instructions on evidence of prior bad acts

Question 21

Prior Bad Acts and Relevance

Answer 21

• deals with what level of proof is required for an uncharged bad act to come in
• judge evaluates under 104(b), conditional relevance and preponderance of the evidence -> question is whether a reasonable juror based on all the evidence in the case (including evidence about the current case, not just the evidence about the prior bad act) could conclude that the defendant committed the prior bad act -> if yes, then it comes in
• this was decided in Huddleston

Question 22

Rule 406

Answer 22

Evidence of habit

• Evidence of a person’s habit or an organization’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.
• The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Question 23

Habit vs. Character

Answer 23

Character = generalized description of disposition

Habit = regular response to a repeated scientific situation
- note that religious observances are not considered habit
- some aspect of this semi-automatic and non-volitional, but there was also the example of the guy who flies airplanes for delivery that counted as habit

• somewhat in tension with each other, but Prof noted we tend to care less about habit, and it tends to be emphasized less by juries

Question 24

Organizations and Habit

Answer 24

• for organizations, habit means “routine practice”
• compare with Rule 803(6) - business records

Question 25

Habit and Lying

Answer 25

• lying does not qualify as habit - it goes to character

Question 26

Habit and Alcoholism

Answer 26

• courts are split on subject of alcoholism as habit or character evidence

Question 27

Kornberg v. U.S.

Answer 27

• notice to patient could be proven through the habit of two doctors who give side-effect warnings

Question 28

Special Rules of Evidence for Sexual Misconduct

Answer 28

• Rule 412 - evidence about the victim
• Rules 413 and 414 - evidence about the defendant

Question 29

Rule 412

Answer 29

• applies in both civil and criminal trials
• applies to every kind of crime involving sexual misconduct
• evidence about other sexual behavior of the victim (broad - covers everything from lifestyle to clothes) and victim’s sexual predisposition not admissible substantively OR for impeachment

Question 30

Rule 412(b) - Exceptions

Answer 30

(1)
A) evidence of specific instances of victim’s sexual behavior, if proving someone else was source of physical evidence
B) evidence of specific instances of sexual behavior wrt person accused, if offered by def to prove consent
C) evidence whose exclusion would violate the defendant’s constitutional rights
- Prof noted that these exceptions are very narrowly construed
2) in civil cases, if probative value outweighs the danger of harm to the victim and unfair prejudice to any party

Question 31

Rule 413

Answer 31

Similar Crimes in Sexual Assault Cases

• in criminal case in which defendant accused of sexual assault, court can admit evidence that the defendant committed any other sexual assault
• no time limitation, and no requirement of charged or reported
• overrides the propensity bar - this is why there are pattern witnesses in sexual assault cases
• in theory, 403 technically still applies, but in practice this is seen as a strong Congressional statement that prior instances should come in for propensity in this context

Question 32

Rules 414 and 415

Answer 32

• similar to Rule 413, but for child molestation cases and civil sexual assault cases, respectively