Character Evidence Flashcards
what is character evidence?
a person’s general propensity or disposition (honesty, fairness, peacefulness, violence)
in what situations is character evidence admissible to prove a person’s character in civil cases as a matter of substantive law and what kinds of evidence is allowed?
When proof of a person’s character is “directly at issue” in the case (character is an essential element of a claim or defense):
Defamation cases where truth is a defense (plaintiff’s character is at issue)
Negligent hiring or entrustment cases (hired/entrusted person’s character is at issue)
child custody cases {parent’s character is at issue)
Types of evidence allowed: reputation, opinion, relevant specific acts (all types)
*note: evidence of D’s other sexual assault or child molestation acts is allowed in civil or criminal trials as propensity evidence
In what situations can someone use conduct in conformity with character/ propensity evidence?
Who can introduce it, for what purpose can they introduce it, and using what method can they introduce it?
(1) Defendant in criminal cases may offer evidence of:
(a) Defendant’s pertinent character trait [i.e. not a random ass trait like “silly”] when relevant to prove D’s innocence (if the evidence is admitted, the prosecutor may offer evidence to rebut it)
Method: reputation or opinion evidence
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(b) Victim’s pertinent character trait* when it is relevant to show D’s innocence (usually self-defense cases where D claims Victim was first aggressor)
Method: reputation or opinion evidence
*limited by FRE 412 (sexual assault cases)
(if this evidence is admitted, prosecutor may then offer evidence to rebut it; and offer evidence of the defendant’s same trait)
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(2) Prosecutor can offer evidence of:
(a) Defendant’s character – 2 situations
(i) when defendant has ALREADY introduced evidence of D’s character [used to rebut the evidence of D’s character that D offered]
Method/form:
ON CROSS: “have you heard/did you know” questions about specific acts of the D that show D’s bad character in question — BUT ONLY TO PROVE LACK OF KNOWLEDGE, NOT TO PROVE CHARACTER
AFTER D’s CASE: reputation or opinion evidence from prosecution’s own character witness
(ii) when Defendant has ALREADY introduced evidence of VICTIM’s character trait, AND
the character trait of the defendant that the prosecutor is offering is the SAME trait as the one the defendant offered as being the victim’s trait
Method: reputation or opinion evidence
Timing: through its own character witness after D’s evidence
(b) victim’s character trait – 2 situations
(i) to REBUT the evidence of VICTIM’s character that D has offered into evidence
Method: reputation or opinion evidence
(i) in a homicide case in which D is arguing self-defense, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence of ANY kind that the victim was the first aggressor [includes character evidence or other kinds of evidence like eye witness testimony]
Method:
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(3) ANYONE can offer evidence of any Witness’s character for UNtruthfulness
Type of evidence allowed: reputation or opinion evidence
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(4) ANYONE can offer evidence of any Witness’s character for truthfulness IF witness’s character for truthfulness has been attacked
Type of evidence allowed: reputation or opinion evidence
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**note, see civil cases card for when character is a substantive issue in the case
what is propensity evidence?
circumstantial evidence of how a person probably acted during the events of the case
What is the general rule of character evidence?
In general, in criminal and civil cases, evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait
when can you use character evidence for a witness?
can use evidence of a W’s bad character for truthfulness for impeachment of that witness
why can a defendant show evidence of their own character in a criminal case?
because their life or liberty is at stake, they need to be able to show their innocence
general rule for character evidence for sexual misconduct
in general, in any civil or criminal case involving sexual misconduct, evidence offered to prove the sexual behavior or disposition of the victim is generally inadmissible
when can specific instances of a victim’s sexual behavior be admitted?
In criminal cases:
(1) admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence
(2) if the conduct is specific instances of sexual behavior between the victim and defendant
(a) admissible by the prosecution to prove for any reason
or
(b) by the defendant to prove consent
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In Civil cases:
(1) admissible if not excluded by any other rule AND its probative value SUBSTANTIALLY OUTWEIGHS the danger of harm to the victim and of unfair prejudice to any party [reverse 403] … favors excluding evidence
(2) if in the form of reputation of the victim: Admissible if reputation has been placed in controversy by the victim
when can you use specific acts as character / propensity evidence?
(1) when character is an essential element in the case [this really only comes up in certain civil cases]
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(2) propensity evidence can be used in a criminal or civil case where defendant is accused of committing an act of sexual assault or child molestation
(a) party intending to offer this must disclose to D 15 days before trial, or later with good cause
what is the general rule about other crime, wrongs, and acts in civil and criminal cases?
they are not generally allowed to prove character [but there a few exceptions] but they are admissible if relevant to some other issue besides character or propensity
what are some non-character purposes for other crimes, wrongs and acts that are admissible as bearing on guilt / liability?
what form must the evidence come in?
When can this evidence come in?
motive
intent
absence of mistake
lack of accident accident
opportunity
preparation
plan
knowledge
identity
[MIMIC] motive, intent, mistake, identify, common plan or scheme
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Form of evidence:
can be in any form (witness testimony, conviction, etc.)
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when it can be introduced:
can only be introduced when defendant is actually contesting the non-character issue, such as identity or intent
[but prosecutor in crim case does not have to wait for D to open the door]
what is the requirement that attaches when a prosecutor seeks to introduce specific acts for a non-character purpose?
NOTICE requirement – prosecutor must
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
what are the purposes for offering character evidence
prove a herons’s character when it is directly at issue (rare)
prove how a person probably acted during the events of the case (propensity evidence)
how does a Defendant open the door to prosecutor’s use of character evidence?
by bringing in character evidence in his case, not simply by testifying [testifying brings his credibility into issue, not his character]
