Character Evidence

Question 1

Character evidence in CIVIL cases

Answer 1

Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion

Question 2

Character evidence in CIVIL cases-Exceptions

Answer 2

Character evidence is admissible where:
* Character at issue: character is an essential element of a claim or defense (e.g. defamation)
-Character can be proved through opinion, reputation, or specific instances of conduct
* Prior acts of sexual assault or child molestation in cases for similar claims: D’s prior acts of sexual assault or molestation are admissible to prove D’s conduct in the present case
-Note: Also applied in criminal cases; P must disclose intent to offer evidence at least 15 days before trial

Question 3

Impeachment vs. Character

Answer 3

Be sure to understand whether evidence of a person’s character is being used as substantive character evidence or impeachment evidence
-Substantive character evidence is subject to greater admissibility restrictions than impeachment

Question 4

Evidence of D’s character in CRIMINAL cases

Answer 4

In criminal cases, D may introduce evidence of her good character; which the prosecution may rebut; with limited execptions, prosecution may not first introduce evidence of D’s character

Question 5

Evidence of D’s character in CRIMINAL cases-Defense

Answer 5

Defense may introduce evidence of pertinent good character
* Must be pertinent to the charged crime (e.g. D’s reputation for peacefulness is irrelevant to a forgery charge)
* Method: D may call W to testify to D’s good character based on reputation or opinion (but not specific instances)
* P’s rebuttal: once D “opens the door,” P may rebut by:
-Cross ex of D’s character W: including knowledge of specific instances of D’s misconduct or prior arrests
-Calling W to testify to D’s bad character for the trait in question

Question 6

Evidence of D’s character in CRIMINAL cases-Prosecution

Answer 6

Prosecution may not initiate introduction of character evidence about D (i.e. can’t “open the door”) except:
1) Sexual assault/child molestation cases: P can offer evidence of D’s other acts of sexual assult or child molestation
2) If D first offers evidence of victim’s character: P can offer evidence that D has the same character
* Direct: reputation and opinion evidence is admissible; evidence of specific instances is inadmissible
* Cross: reputation, opinion, and specific instances are admissible

Question 7

Evidence of Victim’s character in CRIMINAL cases

Answer 7

Only D can “open the door” by introducing evidence of victim’s character to prove conduct
* Once D offers evidence of victim’s character, prosecution may rebut
* Homicide cases: if D raises self defense, D can offer evidence of victim’s character for violence to show that the victim attacked first
-Prosecution may then rebut by offering evidence of victim’s character for peacefulness to rebut D’s claim of self defense

Question 8

Evidence of Victim’s character in CRIMINAL cases-Methods

Answer 8

• Direct: reputation and opinion evidence is admissible; evidence of specific instances is inadmissible
• Cross: reputation, opinion, and specific instancs are admissible

Question 9

Rape shield limitation on evidence of victim’s character in SA cases-Civil cases

Answer 9

Reputation, opinion, and specific instances of victim’s character are admissible if:
1) Probative value substantially outweighs unfair prejudice; and
2) In the case of reputation evidence, P puts her reputation at issue in some way
-Note: this standard is 2 pronged, unlike the FRE 403 discretionary exclusion standard (do not confuse the two)

Question 10

Rape shield limitation on evidence of victim’s character in SA cases-Criminal cases

Answer 10

• Reputation and opinion evidence of victim is inadmissible
• Evidence offered to prove victim’s sexual behavior or disposition is inadmissible
• Exceptions: specific instances of victim’s sexual behavior is admissible to show:
  a) A third party is the source of injury or DNA
  b) Prior acts of consensual intercourse between victim and D

Question 11

Rape shield limitation on evidence of victim’s character in SA cases-Procedures

Answer 11

Parties must disclose intent to offer evidence, describe its purpose, and notify the victim 14 days before trial

Question 12

Specific Instances of D’s bad conduct (Prior bad acts)

Answer 12

In civil and criminal cases, specific instances of D’s bad conduct are generally inadmissible to prove character (i.e. action in conformity therewith) but admissible if independently relevant
* I.e. prior bad acts are inadmissible unless the acts are relevant to an issue other than D’s character or criminal disposition
* Exception: in SA or molestation cases, evidence of D’s prior acts of SA or molestation is admissible
* Note: prior acts evidence is always subject to FRE 403 balancing (probative value vs unfair prejudice)

Question 13

Prior bad acts-MIMIC

Answer 13

Common non character uses of prior acts evidence
* Prior acts evidence is admissible to prove:
1) Motive
2) Intent
3) Mistake (i.e. absence of mistake, knowledge)
4) Indentity (extremely similar or unique prior act)
5) Common plan or scheme
* Usually arises in criminal cases, but may arise in civil cases