Character Evidence Flashcards
404(a)(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.
404(b)(1)
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.
404(b)(2)
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)
404(b)(2) Notice Requirement
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.
404(b)(2) Good Faith Basis Requirement
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)
405(b) - Character is an Essential Element
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
406 Habit Evidence
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
404(a)(2)(A) - Criminal Defendant Pertinent Trait
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.
405(a) - Ways to Prove Character
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.
Ways Prosecution May Fight Back Once Door Is Open
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
404(b)(2)(B) - Victim Pertinent Trait
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.
404(a)(3) - Witness Character
Evidence of a witness’s character may be admitted under Rules 607, 608, and 609
607 - who can impeach a witness
Any party, including the party that called the witness, may attack the witnesses credibility
608(a) - Attacking a Witness’s Credibility with character evidence
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.
608(b) - Extrinsic Evidence of Witness Credibility (Character)
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.
609(d) - Juvenile Convictions
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
609(b) - Older Convictions
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.
609(a)(2) - False Statement Crimes
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
609(a)(1) - Felony Crimes
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
Gordon’s Five Factors
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
