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Evidence > Character Evidence > Flashcards

Character Evidence Flashcards

1
Q

Character Evidence General Rule — FRE 404(a)(1)

A

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.

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2
Q

“Other Acts” Evidence — FRE 404(b)

A

(1) Prohibited Uses
- 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.
(2) Permitted Uses
- This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. (KIPPOMIAL)

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3
Q

Character Evidence Key Rule

A

Can’t use character evidence to prove propensity… but the ONLY prohibited purpose is propensity (“she robbed a bank 5 months ago, so she probably robbed THIS bank”)

BUZZ = “players gunna play—robbers gunna rob”

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4
Q

Last hurdle

A

EVEN IF “other acts” are not barred because they are offered for issue other than propensity…
Does it survive 403?

Other crimes carry a high risk (Old Chief)
Motion in limine = don’t think about pink elephants
Jury may improperly use prior crimes for propensity.

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5
Q

Standard under which “other/prior acts” must be proved

A

Other/prior acts (if they get around propensity) are only relevant if they actually happened.
The proof of the other acts must meet 104(b) Huddleston Standard (a juror COULD find preponderance)
- Can be acquitted of prior crime, but it still gets admitted in i another trial under 404b since Huddleston is WAY lower than reasonable doubt.

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6
Q

Who does 404 (character evidence) protect?

A

ALL litigants — not just defendants.

D can’t offer prior acts of another person for propensity purposes.
“this other guy has been charged in the past with illegal possession of firearm, so he was probably the one that had the gun here.”
— BUT “reverse MO” is around propensity ^^ this is pure propensity.

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7
Q

Common “other purposes” that are permitted uses of prior acts: First 5

A

KIPPO

  1. Knowledge
    - The defendant had specialized knowledge (knew how to make a bomb)
    - Can also be constructive knowledge or notice.
  2. Intent
  3. Preparation
  4. Plan/Common Scheme
    - Have end goal & does a number of bad acts in order to achieve that end goal
    - A pattern or systematic course of conduct is insufficient to establish a plan.” “Therefore, it is not enough to show that each crime was ‘planned’ in the same way; rather, there must be some overall scheme of which each of the crimes is but a part. (Kirsch)
  5. Opportunity
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8
Q

Common “other purposes” that are permitted uses of prior acts: Last 4

A

MAIL

  1. Motive
    Prior act that would create a desire/motive to commit this act.
  2. Absence of Mistake
  3. Identity/Modus Operandi
    - Only if identity is at issue!!! (D saying “I didn’t do it”)
    - HIGH degree of similarity and unique (unlikely to be anyone else’s work)
    - So similar to previous act/crime that “this crime could not be anyone else’s”
    - Similarities between the two crimes must be so distinctive that the inference nobody else could have committed this crime overcomes the jury’s temptation to engage in pure propensity reasoning.
  4. Lack of Accident
    Doctrine of Chances:
    - “What are the odds?”
    - How many similar instances until they look suspicious?
    - Multiple misfortunes, if similar and rare enough, suggest guilt only because of the unlikelihood of innocent coincidence
    - Like the guy who had like 3 wives drown in bathtubs
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9
Q

Reverse MO

A

“Reverse 404(b)” - US v. Stevens (more correctly called “reverse MO”)
- Crime where D is identified in the lineup
- Another super similar crime happens where D is not identified
- Wants to get in to show: since D didn’t commit second crime, unlikely he committed the first.
- Under 403 – there is no unfair prejudice against government (so easier to clear). No risk jury will punish - government for another person’s crime.

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10
Q

Character Evidence Exceptions

A
  1. Essential Element
  2. Criminal D’s OWN pertinent trait
  3. Criminal D offering VICTIM’s pertinent trait.
  4. Criminal P in HOMICIDES of VICTIM’s peacefulness to rebut IF at issue
  5. Sexual Assault & Child Molestation
  6. Rape Shield
  7. Habit (quasi exception)
  8. Witness’s Character for Truthfulness
  9. Witness Impeachment by evidence of Criminal Conviction
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11
Q

Character Evidence Exceptions: Essential Element — FRE 405(b)

A

Evidence may be admitted when the character trait is an essential element of the charge, claim, or defense
Proof By: Reputation, opinion, AND specific acts**

When is character an essential element?
1 Entrapment defense
“Lured me into crime.” Character is essential because D did not have a predisposition to do the crime – someone else’s idea.
2 Defamation/slander/libel
Only if the statement goes to character and not a fact!
“He’s abusive” = character at issue
“On one specific instance, he hit me” = character not at issue
3 Child custody
Who is the better parent?
4 Negligent entrustment
To prove that the entrustee was incompetent

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12
Q

Character Evidence Exceptions: Criminal defendant’s evidence of OWN pertinent trait — FRE 404(a)(2)(A)

A

Proof by: Reputation or Opinion

Rebut (Open Door): Prosecutor may then rebut with
- Own witness of Reputation or Opinion
- CROSS D’s witness by asking about Specific acts

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13
Q

Character Evidence Exceptions: Criminal defendant offer evidence of VICTIM’S pertinent trait — FRE 404(a)(2)(B)

A

Proof by: Reputation or Opinion
Rebut (Open Door):
1. Prosecutor may then rebut VICTIM’s trait with
- Own witness of Reputation or Opinion
- CROSS D’s witness by asking about Specific acts

  1. Prosecutor may also offer evidence of DEFENDANT’s same traits with
    - Own witness of Reputation or Opinion
    - CROSS D’s witness by asking about Specific acts
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14
Q

Character Evidence Exceptions: When can a PROSECUTOR offer evidence of VICTIM’s peacefulness — 404(a)(2)(C)

A

Criminal PROSECUTOR in HOMICIDES may offer evidence of VICTIM’s peacefulness IF put at issue by evidence that victim was the first aggressor

Homicide ONLY.
Only Peaceful character to rebut first aggressor.

Reputation or opinion testimony

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15
Q

Character Evidence Exceptions: Sexual assault & child molestation — FRE 413, 414, 415

A

In cases of sexual assault or child molestation, evidence of a past commission of the same sex offense may be admitted. EVEN FOR PROPENSITY
- Past offense/crime does NOT have to have been charged.

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16
Q

Difference between 413-15?

A
  • 413 = CRIMINAL sexual assault
  • 414 = CRIMINAL child molestation
  • 415 = CIVIL sexual assault or child molestation.
17
Q

Character Evidence Exception: Rape Shield — FRE 412

A

In all cases involving alleged sexual misconduct (much broader than 412-15 – could include sexual harassment even), the VICTIM’s past sexual behavior or sexual predisposition is NOT ALLOWED except:

(A) Criminal case - to prove someone other than defendant was source of physical evidence (semen, injury, etc.)
(B) Criminal case - specific sexual behavior WITH ACCUSED if offered to show consent or offered by prosecutor.
(C) Criminal case - when the exclusion of evidence would violate D’s constitutional rights
- Think Confrontation Clause – Bias, see Olden (Victm motivated to lie to protect her relationship)
(2) Civil case - if victim has placed reputation in controversy, evidence to prove sexual behavior or predisposition is allowed if its probative value substantially outweighs the danger of harm or unfair prejudice.
- Super high bar (basically not coming in) OPPOSITE of 403.

Other sexual behavior
- Broadly defined by ACN to include physical conduct, fantasies, and even things that IMPLY sexual conduct (pregnancy, contraceptives, etc.)

Predisposition
- Broadly defined by ACN to include dress, speech, lifestyle, etc.
412 is EXTREMELY exclusionary. Victim’s sexual behaviors / predisposition is NOT coming in except under these narrowly defined exceptions. (Opposite of 404b – acts for any purpose other than propensity are coming in).

18
Q

Character evidence — is bias character evidence?

A

No. Bias (show a relationship that might lead the witness to slant testimony in favor of a party) is always relevant. Extensive evidence is allowed.

19
Q

Habit as a character evidence exception — FRE 406

A

Evidence of a person or organization’s habit or routine practice MAY be admitted to prove they acted in accordance with the habit or routine practice.
Must ask: was this behavior so routine that it became “predictable and predictive conduct?”
Almost needs to be action that a person does without conscious volition.

Examples:
- Seatbelt use
- Having breakfast at same place/time.
- Brushing teeth.

Habit is NOT the same as character evidence (so it’s a quasi-exception)

I really like the idea of building up and tearing down an argument that a propensity character trait IS habitual. For example: “D is reckless” = NOT propensity, but to show a habit of recklessness. This CANNOT work. To allow it would eliminate almost the entire propensity prohibition since most character traits could be described as habitual ways of being.

20
Q

Character Evidence Exceptions: Witness’s character for truthfulness — FRE 608

A

In all cases, evidence of a witness’s credibility (character for truthfulness) may be attacked or supported.
- BUT evidence supporting truthful character is admissible only AFTER character for truthfullness/credibility has been attacked!
- Bias or prior inconsistent statements are NOT an attack on character.
- “Anytime a witness takes the stand, their credibility is at issue!”

Proof By:
On direct = Reputation or Opinion
On cross = Specific instances (but stuck with answer – **no extrinsic evidence allowed. Court doesn’t want a bunch of mini side-trails.).

21
Q

Character Evidence Exceptions: Witness Impeachment by Evidence of Criminal Conviction — FRE 609

Overview & List

A

Using a witness’s prior criminal conviction to attack their credibility (character for truthfulness)
Extrinsic evidence IS allowed to impeach.

  1. Non-accused felony conviction within 10 years
  2. Accused felony conviction within 10 years
  3. Crimes of dishonesty within 10 years
  4. Crimes outside of 10 year window
  5. Juvenile Adjudications
22
Q

Character Evidence Exceptions: Witness Impeachment by Evidence of Criminal Conviction — FRE 609

10 year window

A

Within 10 years since the witness’s conviction OR release from confinement, whichever is later.

23
Q

Character Evidence Exceptions: Witness Impeachment by Evidence of Criminal Conviction

Non-accused felony conviction within 10 years — 609(a)(1)(A)

A

For any witness that takes the stand (besides the criminal defendant) thier felony (1+ year) conviction within the last 10 years “must” come in subject to 403 (as long as probative value is not substantially outweighed by unfair prejudice)

My thoughts: seems super unlikely for there to be substantial unfair prejudice since the witness is not the accused…

24
Q

Character Evidence Exceptions: Witness Impeachment by Evidence of Criminal Conviction

Accused Felony Convictions Within 10 Years – 609(a)(1)(B)

A

In CRIMINAL ONLY

If witness IS THE DEFENDANT, felony (1+ year) of the last 10 years must come in if the probative value outweighs its prejudicial effect (reverse 403 without substantial)

Brewer 5 factor test
1. Nature of crime
- The more it has to do with dishonesty/truthfulness the more probative it is.
2. Time of conviction and witness’ subsequent history
- Is it old? How old? What is the witnesses subsequent history?
3. Similarity between the past crime and the charged crime
- More similar cases = less likely to be admitted (too risky of jury using for propensity).
- Brewer conviction at issue was a kidnapping and he was on trial for kidnapping.
4. Importance of defendant’s testimony; and
5. The centrality of the credibility issue

25
Q

Character Evidence Exceptions: Witness Impeachment by Evidence of Criminal Conviction

Crimes of Dishonesty Within 10 Years – 609(a)(2)

A

For any witness, crimes of dishonesty MUST be admitted (no 403 at atll! It’s coming in!) within 10 year window.

Examples of crimes of dishonesty
- Larceny, Forgerey, perjury, Fraud, Embezzlement, etc.

MUST HAVE BEEN CONVICTED. If just perjury without conviction… now that’s specific act of character for truthfulness. Not coming in (improper character ev.)

26
Q

Character Evidence Exceptions: Witness Impeachment by Evidence of Criminal Conviction

Crimes OUTSIDE 10 Year Window – 609(b)

A

Crimes outside of 10 year window are only admissible if
probative value SUBSTANTIALLY outweighs prejudicial effect (reverse 403)

Super high bar. Pretty much can presume this is not coming in.

27
Q

Character Evidence Exceptions: Witness Impeachment by Evidence of Criminal Conviction

Juvenile Adjudications – 609(d)

A

Juvenile adudications (rather than convictions) are only coming in if “necessary for fair determination” in a criminal case.
NEVER coming in if the witness is the criminal defendant!

Evidence (4 decks)

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