Character Evidence

Question 1

Rule 404(a)

Answer 1

Rule 404(a)(1) evidence of character or trait is generally not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Under 404(a)(2), there are 3 EXCEPTIONS to bar on propensity evidence which apply in CRIMINAL case:

404(a)(2)(A) - criminal defendant may offer evidence of DEFENDANT’s own pertinent trait. AND if admitted, the prosecutor may offer evidence to rebut it.

404(a)(2)(B) - criminal defendant may offer evidence of VICTIM’s pertinent trait AND if admitted, the prosecutors may (i) offer evidence to REBUT it and (ii) offer evidence of the DEFENDANT’s SAME trait

404(a)(2)(C) - in a HOMICIDE case, prosecutor may offer alleged VICTIM’s trait of PEACEFULNESS to REBUT evidence that victim was first aggressor (rebut D’s self-defense theory)

404(a)(3): EXCEPTIONS for Witness: evidence of witness character may be admitted under Rules 607, 608, 609

Question 2

Rule 404(b)

Answer 2

Under 404(b)(1), Evidence of crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

Under 404(b)(2), evidence may be admissible for ANOTHER PURPOSE: to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

Question 3

Rule 405

Answer 3

Methods of Proving Character

Under Rule 405(a): admissible character evidence can ONLY be INTRODUCED on DIRECT EXAMINATION in form of OPINION.

On CROSS of character witness, court may allow inquiry into relevant SPECIFIC INSTANCES of person’s conduct.

Under Rule 405(b): when person’s character trait is essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Question 4

Rule 607

Answer 4

Any party including the party that called the witness may impeach a witness to attack witness’s credibility

Question 5

Rule 608

Answer 5

Under Rule 608(a), a WITNESS’S credibility may be attacked or supported by reputation and opinion testimony about the witness’s reputation for character for truthfulness or untruthfulness.
BUT evidence of TRUTHFUL character is admissible ONLY AFTER ATTACKED

Under Rule 608(b), Extrinsic evidence is NOT admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.
BUT the court MAY on CROSS-examination ALLOW SPECIFIC INSTANCES to be INQUIRED into if they are probative of the character for truthfulness or untruthfulness of the witness

Question 6

Rule 609(a)(1) and 609(a)(2)

Answer 6

Impeachment by Evidence of Criminal Conviction

Under 609(a)(1), when attacking a witness’s character for truthfulness by evidence of criminal conviction, evidence of a felony conviction
(A) must be admissible subject to Rule 403 in a Civil or Criminal Case in which the WITNESS IS NOT A DEFENDANT
(B) AND Must be admissible in CRIMINAL CASE if the WITNESS IS A DEFENDANT if . . .THE PROBATIVE value OUTWEIGHS its Prejudicial effect to the defendant

Under 609(a)(2): evidence of dishonest act or false statement crime are admissible regardless of punishment

Question 7

Rule 609(b)

Answer 7

About Older Convictions.

Under Rule 609(b),
if more than 10 years has passed since the witness’s conviction or confinement, evidence of the conviction is admissible ONLY IF

609(b)(1) its Probative value (supported by circumstances/specific facts) SUBSTANTIALLY OUTWEIGHS it prejudicial effect AND

609(b)(2) the proponent gives adverse party reasonable written notice of the intent to use it for that the party has a fair opportunity to contest its use