Character Evidence

Question 1

Three types of character evidence

Answer 1

○ Reputation Testimony
■ “The community thinks the Δ is violent”
○ Opinion Testimony
■ “I believe the Δ is a violent person”
○ Specific-Act Evidence
■ “Two weeks ago, I saw the Δ beat up his neighbor for no reason”

Question 2

Rule of character evidence

Answer 2

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.

“Propensity Evidence”
Using character evidence to show a person has a particular trait and used that trait
in the act

Question 3

uS v. Calvert (character)

Answer 3

Rule of Law

Evidence of a person’s character is not admissible in a criminal case to prove that the person acted in conformity with that character.

Facts

Ronald Calvert (defendant) was charged with fraud in connection with killing a business partner after taking out death insurance on the partner. At trial, over Calvert’s objection, the prosecution introduced evidence that Calvert was previously paid pursuant to insurance policies under similar circumstances. Calvert was convicted by the jury. Calvert appealed, arguing that the previous insurance collections were inadmissible under Federal Rule of Evidence (FRE) 404(a).

Issue

Is evidence of a person’s character admissible in a criminal case to prove that the person acted in conformity with that character?

Holding and Reasoning (Heaney, J.)

No. Evidence of a person’s character is not admissible in a criminal case to prove that the person acted in conformity with that character. However, this evidence may be admitted under limited exceptions, such as to prove preparation, plan, or knowledge. The broad purpose of this rule is to ensure that an irrelevant act is not admitted into evidence based solely on the appearance of relevance. A jury might place undue weight on character evidence in determining whether the defendant acted in conformity with that character on a particular occasion. Additionally, if character evidence is indicative of a defendant’s bad character, a jury might be more apt to punish the defendant, even if the prosecution does not prove all elements of the crime for which the defendant is charged. Finally, a defendant should not be forced to defend against acts or crimes for which he has not been charged and is not on trial. In this case, the district court did not abuse its discretion by admitting the evidence of Calvert’s previous collections on insurance policies as an exception to the general rule barring character evidence. This evidence was admissible to prove that Calvert prepared and planned for the crime of fraud. Therefore, the judgment of the district court is affirmed.

Question 4

Exceptions to character evidence

Answer 4

● 404(a)(2)(A): Evidence of Δ’s good character (Mercy Rule)
● 404(a)(2)(B): Evidence of victim’s bad character
● 404(a)(2)(C): Evidence of the victim’s peacefulness in a homicide case
IN CRIMINAL CASES ONLY

D opens the door, D can put on evidence of his good character for pertinent trait, P can rebut the character evidence on the same trait

Question 5

hOW CAN CHARACTER BE PROVEN?

Answer 5

● Reputation Testimony (R)
○ Witness must:
■ Know the Defendant
■ Know the “community in which he has lived and the circles in which he has
moved”
■ Know the Defendant’s reputation in the community
○ Not hearsay under 803(21)
● Opinion Testimony (O)
● Specific-Act Evidence (SA)

Question 6

Michelson v. US

Answer 6

Rule of Law

A prosecutor may cross-examine a defendant’s character witness about whether he or she has heard of a defendant’s prior arrest or conviction unrelated to the charge for which the defendant is on trial.

Facts

Michelson (defendant) was charged with bribing a federal revenue agent. At trial, Michelson’s counsel called five witnesses to attempt to prove that Michelson had a good reputation in the community. On cross examination, the prosecution (plaintiff) asked four of those witnesses if they ever heard that Michelson was arrested for receiving stolen goods. None of the witnesses had ever heard this, but the prosecution provided a record to the judge outside the presence of the jury to show that it had not simply fabricated the arrest to harm Michelson’s reputation in the eyes of the jury. Michelson was convicted of the bribery charge. The court of appeals affirmed. Michelson appealed on the grounds that the prosecution was incorrectly permitted to cross-examine the witnesses about the prior arrest.

Issue

May a prosecutor cross-examine a defendant’s character witness about whether he or she has heard of a defendant’s prior arrest or conviction unrelated to the charge for which the defendant is on trial?

Holding and Reasoning (Jackson, J.)

Yes. After a defendant has put his character at issue by calling witnesses to testify to his good reputation, it opens the door to the prosecution cross-examining the witnesses about that reputation and providing contradictory witnesses. Specifically, the prosecution may cross-examine a witness about knowledge of the defendant’s prior arrest after the defendant has put his character at issue, but only for the purposes of refuting evidence of the defendant’s good character or to test the sufficiency of the witness’s knowledge about the defendant. Generally, the prosecution may not bring up this type of character evidence unless it goes to an ultimate issue in the case. However, once the defendant opens the door by bringing forth positive character evidence, the prosecution may bring its own evidence as to the reputation of the defendant in the community as well as for the limited purpose of testing the qualifications of the witness to reliably testify about the defendant’s reputation. If a witness has not heard at least rumors about the defendant’s poor character traits, such as an arrest, then it is questionable whether the witness has sufficient knowledge of his reputation to be reliable. In this case, because Michelson voluntarily opened the door to character evidence by calling witnesses to testify about his good reputation in the community, the prosecution was permitted to respond with evidence of poor character to refute that testimony. Although the crime Michelson was on trial for, bribery, is not the same as receipt of stolen goods, they both stem from poor character traits that the witnesses claimed the defendant did not have. As a result, it was proper to admit evidence of Michelson’s prior arrest because if proved, it would weaken the claim that Michelson had a reputation as a good, law-abiding citizen in the community. In addition, it was proper to cross-examine the witnesses about the arrest, not for purposes of proving that the arrest occurred, but for the limited purpose of testing the qualifications of the witnesses to reliably testify about the defendant’s reputation in the community. If they were reliable witnesses, they likely should have known about an event such as an arrest. Accordingly, the court of appeals is affirmed.

Question 7

Defendant’s good character exception summary

Answer 7

● The Δ has to open the door first
● Needs to be pertinent to the case, essentially bring in evidence that shows the opposite:
○ Murder, sexual assault, robbery, kidnapping, assault → Peacefulness
○ Embezzlement, bribery, perjury → Honesty
○ Drug crimes (and most crimes) → Law-Abiding
● 405(a):

Question 8

Defendant’s bad character exception summary

Answer 8

In a criminal case, a Δ may offer
evidence of the victim’s pertinent trait, and if allowed in, the prosecution may either:
(i) offer evidence to rebut it; and
(ii) offer evidence of the Δ same trait
● The Δ has to open the door first
● 405(a):

Question 9

Summary for character evidence in criminal cases: Defendant opens the door (or homicide case where victim alleged to be initial aggressor):

Answer 9

-D can put on reputation/ opinion witnesses of his good character for pertinent trait

P can rebut with cross on specific conduct on same trait

P can rebut with their own reputation opinion witness for D’s bad character on same trait

-D can put on reputation/ opinion witness of victim’s bad character for pertinent trait

P can rebut with cross on specific conduct on same trait

P can rebut with their own reputation/ opinion witness for victim’s good character on same trait

P can rebut with their own reputation/ opinion witness for D’s bad character on the same trait

Question 10

Victim’s peacefulness in homicide case

Answer 10

In a homicide
case, the Δ may offer evidence that the victim was the first aggressor and the
prosecution can offer evidence of victim’s peacefulness.
● The Δ does not have to open the door first. The PRO can be the first to bring up character
evidence, all Δ has to do is bring any general evidence of victim being the first aggressor.

Question 11

Character Evidence Offered for Other Purposes (MIAMICOP)

Answer 11

Prohibits evidence of past crimes to prove a person’s character.
However, evidence (specific acts) may be admissible for another purpose, such as
proving
Motive, Intent, Absence of Mistake, Identity, Common plan or scheme, Opportunity, Preparation.
● This evidence can still be excluded under 403
● Warrants a limiting instruction
● Allowed in either civil or criminal cases
● PRO has to let the defense attorney know that evidence will be introduced of the alternative
purpose before trial

Question 12

Miamicop analysis

Answer 12

Determine specific act at issue

Determine for what purpose it is offered

Is it offered to show person acted in conformity? (if yes not admissible) if no: does the evidence have probative value for some other purpose (Miamicop)

A “Reverse” 403 Balancing Test: does a danger of unfair prejudice
substantially outweigh the probative value?

Question 13

United States v. Hearst (miami cop specific acts showing intent)

Answer 13

Rule of Law

Evidence of a criminal defendant’s other crimes may be admissible to prove knowledge, motive, or intent.

Facts

Patty Hearst (defendant) was charged with bank robbery.

Hearst raised the defense of duress, claiming that her codefendants had forced her to commit the robbery.

At trial, over Hearst’s objection, the prosecution introduced evidence that she took part in another robbery and a kidnapping approximately one month afterward.

During the second robbery, Hearst waited in the getaway car and fired a rifle when one of her codefendants was about to be caught. Additionally, the victim of the kidnapping testified that Hearst did not escape the incident when she had a chance to do so.

The district court: the evidence was relevant to the issues of intent but she argued the incidents were so dissimilar to the bank robbery that its probative value was minimal and was outweighed by its prejudicial effect

Hearst was convicted, and she appealed.

Issue

Is evidence of a criminal defendant’s other crimes admissible to prove knowledge, motive, or intent?

Holding and Reasoning (Per curiam)

Yes. Evidence of a defendant’s other criminal acts is not admissible to prove that the defendant acted in conformity with those prior acts. However, these criminal acts may be admissible to prove knowledge, motive, or intent.

In this case, the district court did not abuse its discretion by admitting evidence of Hearst’s other criminal acts.
The evidence was not admitted to prove that Hearst had the propensity to commit those crimes. Rather, by claiming that she was under duress during the bank robbery, Hearst put her intent to commit the robbery at issue.

The evidence that Hearst had committed other crimes, including another robbery, was admissible to prove that Hearst did have the intent to commit bank robbery and thus was not under duress when she committed the robbery in this case.

The fact that Hearst intended to commit the other crimes disproves her assertion that she did not intend to commit the robbery. Thus, the district court did not abuse its discretion by admitting the evidence of Hearst’s other crimes. Accordingly, Hearst’s conviction is affirmed.

Question 14

United States v. Carroll (miami cop specific acts to prove plan/identity)

Answer 14

Rule of Law

Under Federal Rule of Evidence 404(b), a criminal defendant’s prior conviction is admissible to prove his identity based on a modus operandi.

Facts

Gerald Carroll (defendant) robbed the St. Louis Community Credit Union in 1998.

At Carroll’s trial for the robbery, the prosecution introduced, over Carroll’s objection, his prior conviction for bank robbery. The previous bank robbery had occurred in 1988. In each bank robbery, Carroll had worn a stocking as a mask and jumped over the teller counter to take the money. Carroll also carried a gun during each robbery.

The district court held that the prior conviction was admissible under Federal Rule of Evidence (FRE) 404(b) “for purposes of showing a plan or pattern . . . plus identity.” Carroll was convicted, and he appealed.

Issue

Is a defendant’s prior conviction admissible to prove his identity based on a modus operandi?

Holding and Reasoning (Bowman, J.)

Both identity and plans are part of the exception for introducing a prior conviction but they have separate purposes so the district court incorrectly confused the two.

Plan: allowed to show crime was part of a broader scheme.

Identity: two factors: unusual and distinctive and the amount of time elapsed between the crimes

Yes. Under FRE 404(b), a criminal defendant’s prior conviction is admissible to prove his identity if the pattern and characteristics of the crimes involved are so unusual and distinctive that they are identifiable as the defendant’s modus operandi. In other words, both the prior crime and the crime charged must involve a distinctive set of facts so unique that a reasonable jury could conclude, without more, that the same person committed both crimes.

However, although Carroll’s two robberies are similar, the facts and circumstances surrounding the robberies are very generic. There is nothing particularly unique about the robberies that would distinguish them from the thousands of other bank robberies occurring every year.

Examples of unique facts would be a distinctive weapon, a unique costume or mask, or an unusual method of robbery. None of those were present in this case. Therefore, the pattern and characteristics of the robberies are not so unusual and distinctive that they are identifiable as Carroll’s specific modus operandi

The amount of time that elapsed between the crimes is relevant to this determination.

Additionally, 10 years elapsed between the robberies, which is a significant amount of time and also supports excluding the prior robbery conviction for identity purposes. In sum, the prior conviction should not have been admitted. However, the error was harmless in light of other substantial evidence against Carroll. Accordingly, Carroll’s conviction is affirmed.

In this case, the district court abused its discretion by admitting evidence of Carroll’s prior robbery conviction.

Carroll’s prior conviction was not introduced as part of a broader scheme involving the 1998 bank robbery, but rather as a way to prove Carroll’s identity based on a modus operandi.

Question 15

Character Evidence Offered to Prove an Element of a charge, claim, defense

Answer 15

By Specific Instances of Conduct. 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 the person’s conduct.
● Defamation – reputation is generally on the line
● Negligent Entrustment – want to show that the person was reckless and should
not have been trusted
● Crimes Involving Status – the status the defendant holds (i.e. felon)
Don’t forget the 403 balancing test!!

Question 16

Scafer v. Time (miami cop specific acts to prove an element of a charge, claim, defense)

Answer 16

Rule of Law

Under Federal Rule of Evidence 405(b), a specific instance of a person’s conduct is admissible if it tends to prove an essential character element of the claim or charge in dispute.

Facts

Michael Schafer (plaintiff) brought suit against Time, Inc. (Time) (defendant) for libel after he was misidentified from Time’s magazine as being part of a bombing

At trial, Time cross-examined Schafer, over his objection, on several events and actions in his past. For example, Time was permitted to ask Schafer about a prior felony conviction, prior driving-under-the-influence convictions, and failure to pay child support and alimony.

The district court found in favor of Time. Schafer appealed.

Issue

Is a specific instance of a person’s conduct admissible if it tends to prove an essential character element of the claim or charge in dispute?

Holding and Reasoning (Birch, J.)

Yes. Generally, character evidence is not admissible to prove that a person acted in conformity with a certain character. However, under Federal Rule of Evidence 405(b), a specific instance of a person’s conduct is admissible if it tends to prove an essential character element of the claim or charge in dispute.

Court said they would not overturn an evidentiary ruling unless it had a substantial prejudicial effect

Court said they could only talk about the above listed

Courts determination of whether character constitutes an essential element:

1. chastity of the victim under a statute specifying her chastity
2. competency of a driver in an action of negligent entrustment
3. defamation cases

In an action for libel, a person seeks to recover based on damage to his reputation. The person’s reputation is thus an essential element of the libel claim.

In this case, the district court did not abuse its discretion by permitting Time to question Schafer about specific instances of conduct in his past. Schafer’s character was an essential element in in his lawsuit for libel, because he was seeking to recover based on damage to his reputation.

Therefore, Time was correctly permitted to inquire about and introduce specific instances of Schafer’s conduct into evidence.

Although the court agreed with the district court and could not say that there was an abuse of discretion or that Schafer suffered a substantial prejudicial effect

Question 17

Review of Character evidence

Answer 17

• Criminal Cases:
• Character gets in ONLY if D opens the door (or homicide case where evidence
  shows victim first aggressor). If that happens:
• D can put on reputation/opinion witnesses of his good character for pertinent trait
• P can rebut with cross on specific conduct on same trait
• P can rebut with their own reputation/opinion witness for D’s bad character on same trait
• D can put on reputation/opinion witness of victim’s bad character for pertinent trait
• P can rebut with cross on specific conduct on same trait
• P can rebut with their own reputation/opinion witness for victim’s good character on same
  trait
• P can rebut with their own reputation/opinion witness for D’s bad character on same trait
• All cases:
• Specific instances of conduct can be offered to prove something other than
  character. E.g.
• Motive
• Intent
• Identity
• Absence of Mistake
• Common Scheme or Plan
• Reputation, Opinion or Specific Instances of Conduct can be used to prove
  character where character is at issue (narrow set of cases)
• Defamation
• Negligent Entrustment

Question 18

Character in sex offenses

Answer 18

FRE 412(a): Victim’s Character in a Sex-Offense Crime
● FRE 412(b)(1) and (2): Exceptions to the Rule
● FRE 413: Defendant’s Character in a Sexual Assault Cases
● FRE 414: Defendant’s Character in Child Molestation Cases
● FRE 415: Defendant’s Character in a Civil Case

Question 19

Rape shield law

Answer 19

the following evidence is not admissible in a civil or criminal proceeding
involving alleged sexual misconduct:
(1) Evidence offered to prove that a victim engaged in other sexual behavior; or
(2) Evidence offered to prove a victim’s sexual predisposition
Aka - Rape Shield Law
Protect the victim from their history

Question 20

Exceptions to rape shield

Answer 20

In a criminal case, a court is allowed to admit evidence of a person’s sexual
character IF:
(A) Evidence of specific instances of victim’s sexual behavior, if offered to prove that someone
other than the defendant was source of the semen, injury, or other physical evidence
(B) Evidence of specific instances of a victim’s sexual behavior with respect to the person accused
of the sexual misconduct, if offered by the defendant to prove consent or if offered by the
prosecutor; and

FRE 412(b)(2) In a civil case, the court may admit evidence offered to prove a victim’s sexual
behavior or sexual predisposition if its probative value substantially outweighs the danger of harm
to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s
reputation only if the victim has placed it in controversy.
403 balancing test!!

Question 21

Judd v. Rodman (rape shield exception)

Answer 21

Rule of Law

Under Federal Rule of Evidence 412(b), evidence of a victim’s past sexual history is admissible if the probative value of the evidence substantially outweighs the danger of harm to the victim or unfair prejudice to the parties.

Facts

Lisa Beth Judd (plaintiff) claimed that she contracted genital herpes from Dennis Rodman (defendant). Judd brought suit against Rodman for tortious transmission of a sexual disease and intentional infliction of emotional distress. During discovery, Rodman asked Judd about her past sexual history and her job as a stripper. Rodman claimed that Judd had contracted the disease from another sexual partner. Judd argued that the evidence was inadmissible under Federal Rule of Evidence (FRE) 412. Judd also testified that she felt “dirty” after contracting herpes. Rodman presented evidence that Judd’s herpes could have been dormant for an extended amount of time. Rodman also presented evidence that Judd had worked as a stripper both before and after contracting herpes. The district court ruled that the sexual history and employment evidence was admissible. The district court ruled in favor of Rodman. Judd appealed.

Issue

Is evidence of a victim’s past sexual history admissible if the probative value of the evidence substantially outweighs the danger of harm to the victim or unfair prejudice to the parties?

Holding and Reasoning (Birch, J.)

Yes. Under FRE 412(a), evidence of a victim’s past sexual history is generally inadmissible. However, under FRE 412(b), this evidence is admissible if the probative value of the evidence substantially outweighs the danger of harm to the victim and the danger of unfair prejudice to any party. In this case, the district court did not abuse its discretion by admitting evidence of Judd’s past sexual history and employment as a stripper. As an initial matter, this court notes that FRE 412 applies to allegations of sexual misconduct and, for purposes of this case, to tortious transmission of a sexually transmitted disease. Under FRE 412, the evidence that Rodman presented about Judd’s sexual history and employment is admissible. Because herpes can lie dormant for a long time, the evidence of Judd’s prior sexual history was highly relevant to Rodman’s claim that Judd contracted the disease from another sexual partner. The district court did not abuse its discretion by finding that the probative value of this evidence substantially outweighed the danger of harm to Judd. Likewise, Judd’s work as a stripper after she contracted herpes is very probative of her emotional state, as it relates to her potential damages for intentional infliction of emotional distress. Although Judd claimed that she felt dirty after contracting the disease, she continued working as a stripper, which indicated that her body image was not substantially affected by the disease. The probative value of this evidence on Judd’s claim for damages was not substantially outweighed by the danger of harm or unfair prejudice to Judd. Therefore, Rodman’s evidence was properly admitted. The judgment of the district court is affirmed.

Question 22

Defendant’s character in sexual assault cases

Answer 22

FRE 413: In a criminal case in which a Δ is accused of a sexual assault, the court may
admit evidence that the Δ committed any other sexual assault.
● This can be brought up as long as relevant to prove that the Δ has a propensity to
commit this kind of crime
● This can be only for specific acts, no opinion or reputation
● Affirmatively admissible, Δ does not have to open the door but the PRO does need to
let the other party know that they are using that evidence

Question 23

Defendant’s character in child molestation cases

Answer 23

FRE 414: In a criminal case in which a defendant is accused of child molestation, the
court may admit evidence that the defendant committed any other child molestation.
The evidence may be considered on any matter to which it is relevant.

Question 24

Defendant’s character in civil cases

Answer 24

FRE 415: In a civil case involving a claim for relief based on a party’s alleged sexual
assault or child molestation, the court may admit evidence that the party committed any
other sexual assault or child molestation

Question 25

US v. Lemay (molestation)

Answer 25

Rule of Law

Federal Rule of Evidence 414 constitutionally permits the admission of a defendant’s prior conviction for child molestation in a criminal case where the defendant is charged with child molestation.

Facts

Fred LeMay (defendant) was charged with sexually molesting two of his minor nephews in 1997. The nephews testified at trial, but LeMay claimed that they were lying. The prosecution sought to introduce testimony, over LeMay’s objection, that LeMay had been convicted of raping two of his minor cousins in 1989. The circumstances surrounding LeMay’s prior rape conviction were very similar to the molestation charge, because the victims were LeMay’s relatives and the alleged act was forced oral copulation while LeMay was babysitting. LeMay argued that the admission of this evidence under Federal Rule of Evidence (FRE) 414 violated his due-process rights. The district court, after hearing all of the prosecution’s other evidence, determined that the testimony regarding the prior rape conviction was admissible under FRE 403 and 414. LeMay was convicted, and he appealed.

Issue

Does Federal Rule of Evidence 414 constitutionally permit the admission of a defendant’s prior conviction for child molestation in a criminal case where the defendant is charged with child molestation?

Holding and Reasoning (Trott, J.)

Yes. In a criminal case where the defendant is charged with child molestation, FRE 414 permits the admission of evidence of the defendant’s prior commission of child molestation. FRE 414 is constitutional. To demonstrate that a rule violates the Constitution, a defendant must show that the rule is a matter of fundamental fairness and that the application of the rule is fundamentally unfair. Admitting evidence of prior child molestation under FRE 414 is not fundamentally unfair, because FRE 403 serves as a backstop that guarantees fairness. FRE 403 provides that evidence is not admissible if its probative value is substantially outweighed by its prejudicial effect. Because evidence of prior child molestation is inherently prejudicial, courts should carefully apply FRE 403 to this evidence, utilizing the following non-exhaustive list of factors: (1) the similarity of the prior acts to the crime charged, (2) the temporal proximity of the prior acts to the crime charged, (3) the frequency of the prior acts, (4) whether there were intervening circumstances, and (5) the necessity of the evidence in light of the other evidence and testimony already offered. In this case, the district court did not violate LeMay’s constitutional rights and did not abuse its discretion by admitting the testimony regarding LeMay’s prior rape conviction. All of the FRE 403 factors outlined above are either neutral or weigh in favor of admitting the prior conviction under FRE 414. LeMay’s 1989 and 1997 acts were very similar and were not so remote from each other as to lessen the relevancy of the prior act. Moreover, given that LeMay had questioned the credibility of the nephews, additional evidence was necessary to prove the prosecution’s case. In sum, the introduction of LeMay’s prior conviction for child molestation under FRE 414 was constitutional and was not an abuse of discretion. Accordingly, LeMay’s conviction is affirmed.

Question 26

Overview for sex offense crimes

Answer 26

Victim’s sexual history/predisposition is INADMISSIBLE (412(a): Victim’s Bad Character)
unless an exception applies (412(b): Exceptions), which depends the type of court.
● In criminal cases, admissible if it is offered to prove that there was someone else other
than defendant or specific instances of behavior with the accused (412(b)(1))
● In civil cases, admissible if the evidence of the victim’s sexual behavior/predisposition
substantially outweighs the danger of unfair prejudice to the victim (412(b)(2))
In a criminal case, defendant’s character evidence (specific acts) is ADMISSIBLE if it shows
that Defendant had committed a sexual assault (FRE 413) and/or child molestation (FRE
414).
In a civil case, Defendant’s character evidence (specific acts) is ADMISSIBLE if it shows that
Defendant had comitted a sexual assault and/or child molestation (FRE 415)

Question 27

Habit, Routine, Practice

Answer 27

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.

Question 28

Loughan v. Firestone (habit, routine, practice)

Answer 28

Rule of Law

Under Federal Rule of Evidence 406, evidence of a person’s behavior can be admissible to prove that the person acted in conformity with a habit if the behavior is the person’s regular response to a specific situation repeated over an extended period of time.

Facts

John Loughan (plaintiff) was a car mechanic. Loughan was injured when a rim-wheel assembly on which he was working came apart and hit him on the head. Loughan brought a products-liability suit against the manufacturer of the assembly, Firestone Tire and Rubber Company (Firestone) (defendant). Firestone sought to introduce evidence of Loughan’s drinking under Federal Rule of Evidence (FRE) 406. Firestone raised the issue outside the presence of the jury and presented, to the judge, evidence that Loughan’s drinking was habitual. Specifically, Loughan regularly carried a cooler of beer on the job and admitted to drinking while on the job. Loughan’s supervisor, who had supervised Loughan from 1971 to 1974, testified to the same. Additionally, Loughan’s supervisor from 1969 to 1971 testified that Loughan had been fired after complaints from customers that he was drinking on the job. The district court admitted evidence of Loughan’s drinking habit as evidence that Loughan had been drinking at the time of the accident. The jury ruled in favor of Firestone. Loughan appealed.

Issue

Can evidence of a person’s behavior be admissible to prove that the person acted in conformity with a habit if the behavior is the person’s regular response to a specific situation repeated over an extended period of time?

Holding and Reasoning (Hatchett, J.)

Yes. Evidence of a person’s behavior can be admissible to prove that the person acted in conformity with a habit if the behavior is the person’s regular response to a specific situation repeated over an extended period of time. There is no bright-line rule for what may be considered habit evidence, but the adequacy of sampling and the uniformity of response are determinative factors. This is in contrast to inadmissible character evidence, which is a general description of either a person or a person’s character trait, as opposed to a person’s specific, repeated conduct. In this case, the district court did not abuse its discretion by admitting evidence of Loughan’s drinking under FRE 406. Firestone presented evidence that Loughan regularly drank on the job for a period of several years. Loughan’s drinking was his regular response to being at work, and this behavior was repeated over a period of at least five years. The evidence was not used to prove that Loughan was a drinker generally, but rather that Loughan had a habit of specific instances of drinking on the job. Thus, the district court did not abuse its discretion by finding that this evidence was admissible to prove that Loughan had been drinking on the job at the time of the accident. The judgment of the district court is affirmed.

Question 29

Factors in determining habit

Answer 29

Specificity

Repetition

Duration

Semi-automatic conduct

Question 30

US v. rosario diaz (habit)

Answer 30

Rule of Law

The prosecution may not bolster a witness’s credibility by making personal assurances of credibility, by indicating that facts not before the jury support the witness’s testimony, or through the testimony of another witness called by the prosecution.

Facts

Ralph Rosario-Diaz and other individuals (defendants) were charged with a carjacking that resulted in the death of a victim. Gregorio Aponte-Lazu, a co-conspirator in the carjacking, pled guilty and agreed to testify on behalf of the prosecution. After Aponte-Lazu testified, the prosecution called FBI agent Daryl Huff as a witness. Huff testified, over the defendants’ objection, about his interactions with Aponte-Lazu during the investigation. Specifically, Huff testified about how the investigators had determined whether Aponte-Lazu was telling the truth, and about certain occasions on which the investigators knew that Aponte-Lazu was lying. Aponte-Lazu’s credibility had not been attacked. The district court instructed the jury to determine Aponte-Lazu’s credibility based only on Aponte-Lazu’s testimony, and not on Huff’s testimony. The defendants were convicted, and they appealed.

Issue

May the prosecution bolster a witness’s credibility by making personal assurances of credibility, by indicating that facts not before the jury support the witness’s testimony, or through the testimony of another witness called by the prosecution?

Holding and Reasoning (Torruella, C.J.)

No. The prosecution may not bolster the credibility of a witness (1) by making personal assurances of credibility, (2) by indicating that facts not before the jury support the witness’s testimony, or (3) through the testimony of another witness called by the prosecution. A jury must determine a witness’s credibility based on competent evidence presented at trial, not on improper bolstering by the prosecution that could lead the jury to place undue weight on the prestige of the government. In this case, the district court erred by permitting Huff to improperly bolster the credibility of Aponte-Lazu. Aponte-Lazu’s credibility had not been attacked by the defendants. Therefore, Huff should not have been permitted to testify about Aponte-Lazu’s credibility as a witness. The sole purpose of Huff’s testimony about the investigators’ interactions with Aponte-Lazu during the investigation was to demonstrate that Huff knew whether Aponte-Lazu was lying or telling the truth. In doing so, and in identifying specific instances where the investigators knew that Aponte-Lazu was lying, Huff effectively also identified instances in which Aponte-Lazu was telling the truth. This was improper bolstering of Aponte-Lazu’s credibility. However, this error was harmless in light of the other evidence presented against the defendants, as well as the district court’s jury instruction on the issue of Aponte-Lazu’s credibility. The defendants’ convictions are therefore affirmed.