Character Evidence

Question 1

Four question approach to ask when dealing with Character Evidence

Answer 1

1. What is the purpose for which the character evidence is offered?

• a.) Offered to prove character because character is an issue in the case.
• b.) Offered to prove character as circumstantial evidence of a person’s conduct on the occasion in question.
• c. Offered to impeach or support the credibility of a witness.

2. What method or technique is used to prove character?

• a.) Specific acts of conduct
• b.) Opinion
• c.) Reputation

3. Is it a civil or criminal case?
4. Does the evidence prove a pertinent character trait?

Question 2

How character evidence is handled in civil cases?

Answer 2

Character evidence is inadmissible to prove conduct except where civil claim is based on sexual assault or child molestation. In such a case, defendant’s prior acts of sexual assault or child molestation are admissible to prove conduct in this case

Question 3

Character Evidence in Civil Cases

1. ) Action for injuries in auto collision. To prove defendant drove negligently, plaintiff calls witness who testifies defendant has reputation as a reckless driver. Admissible?
2. ) Same case. Defendant calls witness who offers to testify that, in his opinion, defendant is a careful driver. Admissible?
3. ) Civil action for assault arisi ng out of defendant’s alleged molestation of plaintiff, a child. Defendant denies the molestation. Plaintiff offers evidence that defendant molested other children. Admissible?

Answer 3

1. ) No. This is character evidence that is trying to be admitted to show conduct.
2. ) No. It is inadmissble to prove conduct. It doesn’t matter who is presenting it.
3. ) Yes. Civil case involving child molestation or sexual assault you can admit D’s prior act to show his character

Question 4

Character Evidence in Civil Cases

1. ) Suit for defamation of character. Plaintiff alleges that defendant was going around town saying plaintiff is a dishonest businessman, thus damaging his reputation. Defendant calls plaintiff’s former business partner who offers to test ify that he is familiar with plaintiff’s conduct and that, in fact, plaintiff is a dishonest businessman. Admissible?
2. ) Other civil cases where CHARACTER is in issue are:
3. ) What methods to prove character are OK when character is in issue?

Answer 4

1. ) Yes because CHARACTER is an issue in a defamation of character case. We aren’t inferring conduct from the character.
2. ) Negligent entrustment (suit against parents claiming they were negligent to give the car to their teenage son, who they knew to be reckless), child custody disputes, and l_oss of consortium cases_ (where widow lost husband; “good” husband= big damages).
3. ) Answer: All methods (i.e., specific instances of conduct, opinion, and reputation)

Question 5

*Chracter * evidence in a Criminal Case

Is character evidence admissible to prove conduct of defendant? Of the victim? Usually only the defendant can open these doors.

Answer 5

1. ) Evidence of Defendent’s Character
2. ) Evidence of P’s Character

Question 6

Character Evidence in a Criminal Case
Admissibility of evidence of defendant’s character to prove conduct

1. ) Can the prosecution be the first to offer character evidence to prove defendant’s conduct?
2. ) Exceptions

Answer 6

1. ) Prosecution cannot be first to offer such evi dence.
2. ) Exceptions: (1) In cases of sexual assault or child molestation, prosecution can be first to offer evidence that defendant committe d other acts of sexual assault or child molestation, (2) Where court has admitted evidence of victim’s character offered by defendant, prosecution can be first to offer evidence that defendant has same character trait. (See hypo (d) page 11 for example.)

Question 7

What are the two “doors” in which character evidence of the Defendant can be admitted?

Answer 7

1. Admissibility of D’s character
2. Admissibility of Victim’s character

Question 8

Character Evidence in a Criminal Case
Admissibility of evidence of defendant’s character

1. ) Defendant is charged with non-sexual assault of an elderly woman. He claims self-def ense because, he says, she attacked him first. Defendant looks like an angel, but has a record of violent assaults. During its case in chief, the state offers evidence of this criminal reco rd. Admissible?
2. ) Exception for sexual assault/child molestation. What if this is a prosecution for sexual assault and defendant’s priors were rape convictions?
3. ) Same as 1 above. On cross, prosecution witness testifies defendant has reputation for being non-violent. Admissible?
4. ) Same case as “1” and “3”. Prosecution in rebuttal calls witness to testify that defendant has reputation for violence. Admissible?
5. ) What if prosecution offered rebuttal evidence that defendan t has a reputation for dishonesty?
6. ) Same case. Defendant calls witness to testify that he once saw defendant attacked but defendant did not retaliate or even defend himself. Admissible?
7. ) Same case. Defendant calls witness who testifies that, in his opinion, the defendant is gentle. On cross-exam, can prosecutor ask, “Did you know that the defendant kicked his evidence professor?”
8. ) Same case. Witness in “g” answers “No, I never heard of the pr ofessor incident.” Can Prosecutor call the professor and, on direct, ask about the attack?

Answer 8

1. ) No. Trial begins with the door closed. Prosecution cannot offer evidence to show this guy has a violent past.
2. ) Yes it is admissible
3. ) Yes. Defense can open the door.
4. ) Yes. (Prosecution then can offer pertinent character evidence to rebut because defendant opened the door).
5. ) No not admissible! Evidence must always concern a pertinent.
6. ) NO. Assuming the door is open, reputation and opinion evidence are admissible on direct examination by any party, but not specific instances evidence (On direct you can only give opinion testimony).
7. ) Yes admissble!! On cross examination by any party, reputation, opinion, and specific instances are all admissible.
   * Here “opinion” evidence was given by the Defendant on direct (door was opened). On cross, conflicting “specific” negative evidence was offered.
8. ) No because you are limited on direct examination as to how you can prove character and you can’t do specific

*

Question 9

Character Evidence in a Criminal Case
Admissibility of evidence of victim’s character

1.) Two ways to open the door to the victim’s character evidence?

Answer 9

(i) if defendant offers evidence of victim’s character, prosecution may rebut.
(ii) in a homicide case, if defendant offers evidence victim attacked first, prosecution may offer evidence of victim ’s character for peacefulness.

Question 10

Character Evidence in a Criminal Case
Admissibility of evidence of victim’s character

1. ) Trial begins with the door closed. Same case (Defendant is charged with non- sexual assault of an elderly woman. He claims self-defense because she attacked him first.) During its case in chief, pr osecution offers evidence that the little old lady who is alleged victim has a reputa tion for being peaceful and gentle. Admissible?
2. ) Same case except defendant on cross-exam of prosecution witness elicits testimony that victim attacked first. Is prosecution evidence that victim had reputation for being peaceful now admi ssible?
3. ) What if this was a homicide prosecution?
4. ) Same case (the assault). Defense calls witness to testify that the little old lady is called “Psycho” back at the old-age home because she has a reputation for being violent. Admissible?
5. ) Same case. After court admits defense evidence of victim’s violent character, prosecution offers evidence of defendant’s violent character. Admissible?
6. ) Same case. To support claim of self-defense, accused testifies on direct that he struck the lady only after she removed knitting needle from her purse and that, on the only other occasion accused saw her with knitting needles, she stabbed a boy scout trying to help her cross the street. Admissible?

Answer 10

1. ) No the door is closed for the prosecution!
2. ) NO.
3. ) Yes. We are in a homicide case.
4. ) Yes. D opens door by offering character evidence, offers evidence it is pertinent, on direct and it is an opinion.
5. ) Yes. Because where the court has admited chracter evidence about the D, the Prosecutor can show the D has same character trait. (The doors usually open separately, but there is one exception.)
6. ) Maybe. If offered to prove character: inadmissible because we are on direct and no specific instances allowed. However may be allowed to prove defendant’s state of mind to show he was afraid.

Question 11

What is the rape shield statute?

Answer 11

Limits defendant’s ability to present victim’s chracter evidence to show victim’s consent in civil and criminal cases.

Question 12

Rape Shield Statute

Criminal Rules:

Civil Rules

Answer 12

Criminal Rules: Reputation and opinion evidence inadmissible . Specific instances of alleged victim’s conduct admissible only to prove:

• (i) third party is source of semen or injury, or
• (ii) prior acts of consensual intercourse between defendant and alleged victim

Civil Rules: Reputation, opinion, and specific instances evidence is admissible if probative value substantially outweighs unfair prejudice and, in the case of reputation eviden ce, plaintiff put her re putation in issue.

Question 13

Specific instances of defendant’s bad conduct may be admitted to prove anything other than character that is relevant.

MIMIC

1. ) Vice president of bank loses $ gambling. To cover his losses, he embezzles $ from the bank. Fearing that the bank will discover that cash is missing, he sets the bank on fire. VP is now on trial for arson and prosecutor offers evidence of defendant’s gambli ng and embezzlement. Admissible?
2. ) Murder prosecution. Victim, the Roadrunner, was shot. Defendant Coyote claims it was acci dental. Prosecution offers evidence that, in the week before shooting, defenda nt tried to drop an anvil on the victim and gave victim a birthday cake with stic ks of dynamite for candles. Admissible?
3. ) Prosecution for bank robbery. Defendant claims he was not the robber. Witnesses testify that robber wore a ski mask, pink ballet tutu, and swim flippers. Prosecution offers evidence that defendant has two prior robbery convictions and in each case defendant wore an iden tical costume. Admissible?
4. ) Murder prosecution. Victim was stabbed in the heart. Prosecution offers evidence of defendant’s previous conviction in which he stabbed another person in the heart. Admissible?
5. ) Defendant charged with bank robbery in which robbers escaped in an ice cream truck. Prosecutor offers evidence that day before the robbery defendant stole that ice cream truck. Admissible?
6. ) Discretion to exclude MIMIC evidence for unfair prejudice. Prosecution for bank robbery. To prove motive, prosecution o ffers evidence defendant needed money to support heroin habit and was unemploye d because he was just released from prison after convictions for child mole station and puppy crue lty. Admissible

Answer 13

1. ) Motive. Yes, he had a motive
2. ) Intent (absence of mistake). Yes admissible not to prove chracter but to prove intent/ absence of mistake
3. ) Identity. Yes, admissible to prove identity.
4. ) NO, not admissible to prove identity. Similarity and Uniqueness required to prove identity.
5. ) Yes. It’s not offered to prove that he is a theif but it is offered to prove that D stole the truck that robbed the bank. Common plan or scheme.
6. Maybe it goes towards motive. Undue prejudice may substantially outweigh the probabtive value