Character Evidence Flashcards
Introduction - Character Evidence
Character evidence is any evidence offered to show that a person acted in conformity with his character on a particular occasion
CEC: Proposition 8 does not apply to character evidence.
Defendant Introducing Character Evidence Against Victim
Criminal defendant can “open door” by introducing evidence of victim’s bad character to prove victim acted in conformity with character.
* FRE: Allows reputation or opinion testimony only; specific acts only allowed on cross to prove character witness’s lack of knowledge
* California: Allows evidence of victim’s reputation, opinion, and specific acts on direct OR cross-examination.
* Prop 8 does NOT apply to evidence of victim’s character to prove conduct
Prosecution Introducing Character Evidence Against Defendant - CRIMINAL CASE
Prosecution cannot offer character evidence about D unless:
(1) D first “opens the door” by offering evidence of his good character; prosecution can then rebut with evidence of his bad character.
* Allows reputation or opinion testimony only; specific acts only allowed on cross to prove character witness’s lack of knowledge
* FRE and CEC same
(2) If court has admitted victim’s bad character offered by D, prosecution can offer evidence that D has the same bad character
* CEC: Allows this only for trait of violence
(3) D’s specific acts of prior sexual assault or child molestation admissible in those cases
* CEC: sexual assault, child molestation, domestic violence, and elder abuse
(4) MIMIC: D’s prior acts admissible if relevant for a non-character purpose (FRE and CEC same)
* Motive
* Intent
* Mistake (or lack of)
* Identity
* Common scheme or plan
CEC same
Character Evidence in Civil Case
Character evidence is inadmissible in civil cases unless:
(1) Character is directly in issue (defamation, negligent entrustment, negligent supervision)
(2) D’s specific acts of prior sexual assault or child molestation admissible in those cases
* CEC: NOT admissible, only for criminal case
(4) MIMIC: D’s prior acts admissible if relevant for a non-character purpose (FRE and CEC same)
* Motive
* Intent
* Mistake (or lack of)
* Identity
* Common scheme or plan
Impeachment - Civil and Criminal
(1) Felony Conviction - Dishonesty
* FRE: Felony convictions involving dishonesty or false statements are admissible [perjury, forgery, fraud]. Court may balance only if conviction is more than 10 years old.
* CEC: Felony convictions involving moral turpitude are admissible [lying, violence, theft, sexual misconduct], subject to court’s balancing (make sure crime wasn’t expunged/pardoned)
(2) Felony Convictions - No Dishonesty
* FRE: Felonies convictions NOT involving dishonesty/false statements are admissible subject to court’s balancing (PV substantially outweighed by UP). If criminal D is impeached, inadmissible unless PV outweighs UP, because it risks jury punishing D for past crime/his criminal character alone.
* CEC: same as (1)
(3) Misdemeanor Convictions
* FRE: Misdemeanor convictions involving dishonesty or false statements admissible (court can’t exclude). NOT admissible if they don’t involve dishonesty/false statements.
* CEC: Misdemeanor convictions involving moral turpitude under Prop 8, subject to court’s balancing.
(4) Prior Misconduct (no conviction)
* FRE: Witness can be cross-examined about bad acts that relate to character for truthfulness (lying), subject to balancing. NO extrinsic evidence.
* CEC: Not admissible for civil cases; for criminal cases, Prop 8 allows acts of moral turpitude admissible through cross-examination and extrinsic evidence
(5) Opinion/Reputation Testimony for Untruthfulness (of Witness)
* Admissible for both FRE and CEC
Note: Assault is not crime of moral turpitude
Felony convictions involving moral turpitude
* CEC: In civil case, can only admit fact that witness was convicted of felony, nothing more. In criminal case, Prop 8 allows admitting underlying circumstances the crime if evidence is relevant for disproving witness’s credibility.
* CEC: For court balancing, make sure impeachment value is not substantially outweighed by its dangers
FRE - Old Convictions: If 10 years have passed since conviction, probative value must substantially outweigh unfair prejudice to be admissible
* No CEC rule, just consider when balancing
Prior Misconduct
* Witness’ credibility may be attacked during cross-examination through extrinsic evidence of CERTAIN prior misconduct, because it’s probative of witness’s truthfulness. Cross-examiner must make inquiry in good faith and have a reasonable basis for believing witness committed the misconduct.
Impeachment of Hearsay Declarant
FRE: Credibility of hearsay declarant can be impeached as if declarant had testified as witness, EVEN IF declarant is not available to explain/deny inconsistency [not testifying or subject to cross-examination]
