CHARACTER EVIDENCE

Question 1

Defintiion of Character Evidence.

Habit

Answer 1

FRE and CEC: Character evidence goes to the general character of a person and conveys a moral judgment.
Usually inadmissible to show conduct in conformity (propensity), subject to exceptions.
Habit evidence, by contrast, describes a person’s regular response to a specific set of circumstances and is admissible.

Question 2

CHARACTER EVIDENCE IN CIVIL CASES

Answer 2

Inadmissible unless [inadmissible to show propensity, but these are not about propensity]:

• Character is directly in issue (defamation case where truth is a defense, negligent entrustment, parent’s ability in child custody case).
• Evidence of prior acts of sexual assault or child molestation when offered in a civil case where D is accused of the same type of conduct.
• MIMIC—if independently relevant for a noncharacter purpose (that is, offered to prove something other than propensity, such as motive or identity). [motive, intent, mistake, identity, common plan or scheme]

CA: CEC same as Federal Rule except there is NO rule allowing evidence of a civil defendant’s similar acts of sexual assault or child molestation (as discussed infra, this type of evidence is admissible in criminal cases only).

Question 3

DEFENDANT’S
CHARACTER IN CRIMINAL
CASE

Answer 3

CA: Same as FRE, Proposition 8 does not apply to evidence of defendant’s character to prove conduct.

**FRE General Rule: **
Inadmissible unless D opens the door by offering evidence of their own good character.
OT and RT admissible on direct and cross-examination;
SIC admissible on cross, but only to prove character witness’s lack of knowledge (not to prove defendant’s character).

• Rebuttable evidence of V’s bad chatacter
• Prior acts of sexual assault/molestation - E of D’s other similar acts (CA also DV and elder abuse cases)
• MIMIC (non-propensity purpose)

Question 4

DEFENDANT’S CHARACTER IN CRIMINAL CASE

Rebutting evidence of victim’s bad character:

Answer 4

FRE:
If court has admitted evidence of victim’s character offered by defendant, prosecution can offer evidence that defendant has the same character trait.

CA:
CEC narrower than Federal Rule because it allows such evidence on the trait of violence only.
If court has admitted evidence of victim’s violent character offered by defendant, prosecution can offer evidence that defendant is also violent.

Question 5

Prior acts of sexual assault or molestation:

Answer 5

FRE: In a sexual assault or child molestation prosecution, evidence of defendant’s other similar acts is admissible.

CA: CEC same as Federal Rule. Additionally, in domestic violence and elder abuse cases, prosecution can offer evidence that defendant committed other similar acts (no such provision under Federal Rules).
(***Recall, in CA this is only for CRIMINAL - not civil…. in Fed it’s for both)

Question 6

MIMIC

Answer 6

FRE: MIMIC - Defendant’s prior acts may be admissible if independently relevant for a noncharacter purpose (such as to prove motive or identity).

CA: Same

Question 7

VICTIM’S CHARACTER IN CRIMINAL CASE— GENERALLY

Answer 7

FRE: Inadmissible unless defendant opens the door by offering evidence of victim’s bad character. OT and RT admissible on direct and cross-examination;
SIC admissible on cross, but only to prove character witness’s lack of knowledge.

• Special homicide rule
• Sexual Assault V’s past behavior

CA:
CEC generally same as Federal Rule; however, when defendant opens the door by offering evidence of victim’s bad character, OT, RT,** and SIC **are all admissible on both direct and cross-examination.
In other words, victim’s specific acts of conduct are admissible to prove victim’s bad character.

Proposition 8 does not apply to evidence of victim’s character to prove conduct.

Question 8

VICTIM’S CHARACTER IN CRIMINAL CASE— SPECIAL RULE FOR HOMICIDE CASES

Answer 8

FRE:
Evidence of victim’s peaceful character offered by prosecution in a homicide case is admissible to rebut any type of evidence from defendant that victim was the aggressor.
OT and RT admissible on direct and cross-examination;
SIC admissible on cross, but only to prove character witness’s lack of knowledge.

CEC:
No California counterpart to Federal Rule regarding victim’s peaceful character in homicide cases.
Proposition 8 does not apply to evidence of victim’s character to prove conduct.

Question 9

SEXUAL ASSAULT VICTIM’S PAST BEHAVIOR

Answer 9

FRE:
OT and RT are generally inadmissible in all cases.

In CIVIL cases, evidence of sexual behavior is admissible ONLY if it meets a strict balancing test:
- PV substantially outweighs UP, and
- If rep Evidence, P puts her rep at issue in some way.

In CRIMINAL cases, SIC regarding sexual behavior is admissible only for the following purposes:
- * To prove someone other than defendant was the source of injury or physical evidence;
- * To prove prior acts of consensual sex between victim and defendant; and
- * To avoid violation of defendant’s constitutional rights.

CEC:
CA’s statute applies only to criminal cases and provides that
D cannot offer any evidence of victim’s prior sexual conduct to prove victim’s behavior unless victim’s prior sexual conduct was with defendant.

Victim’s manner of dress at the time of the offense is also inadmissible.
If prosecution initiates an inquiry into victim’s prior sexual conduct, D may cross-examine and rebut.

Proposition 8 does not apply to evidence that is barred by California’s rape-shield statute.