Character Evidence

Question 1

404(a)(1)

Answer 1

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.

Question 2

404(b)(1)

Answer 2

Evidence of any other 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.

Question 3

404(b)(2)

Answer 3

Evidence of crimes, wrongs, or other acts may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident (MOIPP KIAA)

Question 4

404(b)(2) Notice Requirement

Answer 4

In a criminal case, the prosecution must provide reasonable notice of any evidence offered under 404(b)(2). Such notice usually must be in writing and provided in advance of trial, but the court can excuse lack of pretrial notice for good cause.

The notice must articulate the non-propensity purpose for which the evidence will be offered and the reasoning that supports that purpose.

Question 5

404(b)(2) Good Faith Basis Requirement

Answer 5

The evidence of other acts admissible under 404(b)(2) may only come in if there is sufficient evidence introduced to support a reasonable finding by a preponderance of the evidence that the defendant committed the act. (conditional relevance issue)

Question 6

405(b) - Character is an Essential Element

Answer 6

When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of conduct.

1) Child custody disputes - character of each parent is at issue
2) defamation action if defendant pleads truth defense - plaintiffs character at issue
3) employer charged with negligent entrustment or hiring - character of employee at issue

Question 7

406 Habit Evidence

Answer 7

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.

HABIT = a regular response to a specific set of circumstances

Question 8

404(a)(2)(A) - Criminal Defendant Pertinent Trait

Answer 8

In a criminal case, the defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted ,the prosecutor may offer evidence to rebut it.

Question 9

405(a) - Ways to Prove Character

Answer 9

When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.

On cross-examination of the character witness, the court may allow inquiry into relevant specific instances of the person’s conduct.

Question 10

Ways Prosecution May Fight Back Once Door Is Open

Answer 10

1) Call their own character witness (reputation or opinion testimony)
2) impeach the defendant’s character witness
3) on cross-examination of defendant’s character witness, ask whether the witness has heard about relevant specific instances of the defendant’s conduct (prior convictions, arrests, or bad acts)

LIMITS ON (3)
– The prosecution is bound by the witnesses answer - no extrinsic evidence allowed
– May only ask whether the witness has knowledge of the act
– prosecutor must have a good faith belief the act occurred in question
– the act must be relevant to the specific character trait in question

Question 11

404(b)(2)(B) - Victim Pertinent Trait

Answer 11

In a criminal case, subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

1) offer evidence to rebut it; and
2) offer evidence of the defendant’s same trait.

Question 12

404(a)(3) - Witness Character

Answer 12

Evidence of a witness’s character may be admitted under Rules 607, 608, and 609

Question 13

607 - who can impeach a witness

Answer 13

Any party, including the party that called the witness, may attack the witnesses credibility

Question 14

608(a) - Attacking a Witness’s Credibility with character evidence

Answer 14

A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthfulness is admissible only after the witness’s character for truthfulness has been attacked.

Question 15

608(b) - Extrinsic Evidence of Witness Credibility (Character)

Answer 15

Except for a criminal conviction under rule 609, 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 them to be inquired into if they are probative of the character for truthfulness of
1) the witness; or
2) another witness whose character the witness being cross examined has testified about.

Question 16

609(d) - Juvenile Convictions

Answer 16

Evidence of a juvenile conviction is admissible to attack a witness’s character for truthfulness only if:

1) it is offered in a criminal case;
2) the adjudication was to a witness other than the defendant;
3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
4) admitting the evidence is necessary to fairly determine guilt or innocence

NOTE - Juvenile convictions are never admissible in a civil case or to impeach a testifying defendant

Question 17

609(b) - Older Convictions

Answer 17

If more than ten years have passes since the witness’s conviction or release from confinement, whichever is later, evidence of the convictions is admissible only if:

1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Question 18

609(a)(2) - False Statement Crimes

Answer 18

For any crime, regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness admitting - a dishonest act or false statement.

NOTE - these crimes must be admitted and are not subject to exclusion through 403

Question 19

609(a)(1) - Felony Crimes

Answer 19

For a crime that was punishable by death or imprisonement for more than one year, the evidence

1) must be admitted, subject to 403, in a civil case or in a criminal case in which the witness is not the defendant; and

2) must be admitted in a criminal case in which the witness is the defendant, if the probative value of the evidence outweighs its prejudicial effect to the defendant

Question 20

Gordon’s Five Factors

Answer 20

When a witness is a criminal defendant, the court will consider the following factors in determining whether to admit a conviction to impeach the defendant:

1) The nature of the crime
2) The time of the conviction, and the defendant’s subsequent criminal history
3) The similarity between the past crime and the charged crime
4) The importance of the defendant’s testimony
5) The centrality of the defendant’s credibility