Character Evidence

Question 1

Civil Cases

Answer 1

Character in Civil ==> essentially never ok w 4 small carevouts
1. **Evidence concerning past sexual assault or child molestation by a defendant in a case in which the claim for relief is based on the defendant’s sexual misconduct **is admissible.(including SIC).
2. A defendant in a civil assault or battery action who pleads self-defense to introduce evidence of the plaintiff’s character for violence, provided the defendant proves that he was aware of that character trait.
3. When there is a dispute as to who was the first aggressor, the majority rule is that either party may introduce evidence of his own character for peacefulness or other party’s character for violence
4. Admissible when **character is an essential element of a claim or defense, **rather than a means of proving a person’s conduct.
==> defamation (character of the plaintiff), negligent hiring or negligent entrustment (character of the person hired or entrusted), and child-custody cases (character of the parent or guardian)

Question 1

Character Evidence re Victim (Criminal)

Answer 1

By defense—D may introduce reputation/opinion evidence of victim’s character when relevant to the defense asserted (evidence of victim’s sexual conduct very limited)

By prosecution—prosecution can offer rebuttal evidence of victim’s good character when D has introduced evidence of victim’s bad character (and trait for peacefulness in homicide case to rebut evidence homicide victim was first aggressor)

Question 2

Admissibility of Bad Acts

Answer 2

**not admissible to show D’s criminal propensity **to prove he committed the crime in question

EXCEPT MIMIC ==> non character purposes for admitting a crime or bad act
Motive
Intent
absence of Mistake
Identity
Common Plan

Question 3

Character Evid re D (Criminal)

Answer 3

OVERIDING: Prosecution cannot present neg character evid re D, UNLESS D “opens the door”

Essential Element
D: present
1. reputation/opinion
2. SIC

P: present OR rebut
1. reputation/opinion
2. SIC

Pertinent Trait ==> ONLY IN CRIMINAL
D: present
1. repuation/ opinion

P: rebut
1. reputation/ opinion
2. SIC while cross exam D

D testifies
D = rebut
1. reputation/ opinion

P = show D’s untruthfulness w…
1. reputation/ opinion
2. SIC (bad act & conviction) on cross exam
3. SIC (conviction) w extrinsic evidence

Prosecution never permitted to introduce evidence of D’s bad character to prove D has a propensity to commit crimes and so is likely to have committed the crime in question

Question 4

Impeachment x Admissibility of Character Evidence

Answer 4

—character evidence of witness’s untruthfulness is admissible/relevant to impeach a witness

==> other no

Question 5

Character Evid re Witness: attacking & rehabilitating

Answer 5

Under Federal Rule of Evidence 608, a party may attack a witness’s character for truthfulness through:

1. reputation or opinion testimony about the witness’s character for truthfulness or
   ==> introduced extrinsically—ie, from a source other than the witness’s own testimony (eg, a different witness)
2. specific instances of conduct (SICs)—
   a. ie, convictions for felonies or crimes of dishonesty
   ==> introduced intrinsically OR extrinsically
   b. ** prior bad acts that relate to the witness’s character for truthfulness.**
   ==> introduced extrinsically

After a witness’s character for truthfulness has been attacked, the **party who called the witness may rehabilitate the witness’s truthful character. **

This can be accomplished by offering any or all of the following:
1. reputation testimony – testimony by someone sufficiently familiar with the witness’s reputation among associates or in the community
2. opinion testimony – testimony sharing an opinion on the witness’s character that is based on personal knowledge and familiarity with the witness or
3. testimony on cross-examination about specific instances of conduct that are **probative of the truthful character **of the witness or another witness whose character the witness being cross-examined has testified.

Question 6

SICs x Intrisic/ Extrinsic

Answer 6

intrinsic = introduced through the witness’s own testimony (ie, intrinsically)

==> SICs can always be introduced intrinsically (ie, by questioning the witness being impeached about the SIC).

But they can only be introduced extrinsically (ie, from other sources)** if the SIC relates to a criminal conviction for a felony or crime of dishonesty.**