CHARACTER EVIDENCE

Question 1

CHARACTER EVIDENCE

Answer 1

(1) Character of Evidence in Civil Cases
(2) Defendant’s Character in Criminal Cases
(3) Victim’s Character in Criminal Cases
(4) Rape Shield: Limitation on Evidence of Victim’s Character in Sexual Assault Cases
(5) Specific Instances of Defendant’s Bad Conduct (Prior Acts)

Question 2

Character Evidence 4 Questions Approach

Answer 2

1) What is the purpose for which character evidence is being offered? 3 possibilities:
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–In CA allowed on direct and
cross, FRE cross only
b. Opinion
c. Reputation

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

Question 3

Character Evidence

Answer 3

Character evidence describes a person’s disposition with respect to general traits. Character evidence is generally inadmissible.

Question 4

Character Evidence in CIVIL Cases

Answer 4

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

In civil cases, character evidence MAY be used when: (1) character is at issue or (2) prior acts of sexual assault or child molestation in cases for similar claims.

(1) Character At Issue: Character evidence is ADMISSIBLE if character is an essential element of a claim or defense. Character can be proved through opinion, reputation or specific instances of conduct.
E.g. Defamation, Child Custody Disputes

(2) Prior Acts of Sexual Assault or Child Molestation in cases for similar claims: In cases arising from sexual assault or child molestation, defendant’s prior acts of sexual assault or molestation are ADMISSIBLE to prove defendant’s conduct in the present case.
Note: This also applies in criminal cases. Plaintiff must disclose intent to offer this evidence at least 15 days before trial.

Question 5

Character Evidence in CRIMINAL Cases

Answer 5

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

In criminal cases, Defendant may introduce evidence of her character, which the prosecution may rebut; with limited exceptions. Prosecution may not first introduce evidence of defendant’s character.

The DEFENSE may introduce evidence of pertinent good character. The character must be pertinent to the charged crime (e.g. D’s reputation for peacefulness is irrelevant to a forgery charge). Defendant may call a witness to testify to defendant’s good character based on reputation or opinion (but not specific instances)

Once Defendant “opens the door” the Prosecution may rebut by:

(1) Cross examining defendant’s witness (including knowledge of specific instances of defendant’s misconduct or prior arrests; OR
(2) Calling witnesses to testify to defendant’s bad character, limited to defendant’s character for the trait in question

The Prosecution may not initiate introduction of character evidence about Defendant (i.e. cannot “open the door”), EXCEPT:

(1) In cases of sexual assault/child molestation the Prosecution can offer evidence of Defendant’s other acts of sexual assault or child molestation; OR
(2) If Defendant offers evidence of Victim’s character, Prosecution can offer evidence that Defendant has the same character trait.
* *Direct: Reputation and opinion evidence is admissible; evidence of specific instances is inadmissible
* *Cross: Reputation, opinon, and specific instances are admissible

Question 6

Evidence of Victim’s Character in Criminal Cases

Answer 6

Only a Defendant can “open the door” by introducing evidence of Victim’s character to prove conduct. Once Defendant offers evidence of Victim’s character, Prosecution may then rebut.

In HOMICIDE cases, Defendant can offer evidence of the 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

• *Direct: Reputation and opinion evidence is admissible; evidence of specific instances is inadmissible
• *Cross: Reputation, opinon, and specific instances are admissible

Question 7

Rape Shield: Limitation of Evidence of Victim’s Character in Sexual Assault Cases To Prove Consent

Answer 7

In criminal and civil cases involving rape or other sexual assault, special rules exist limiting defense evidence of alleged Victim’s character when offered to prove consent.

In CIVIL cases, reputation, opinion, an specific instances are ADMISSIBLE to prove if probative value substantially outweighs unfair prejudice AND int he case of reputation evidence, Plaintiff puts her reputation at issue in some way
Note: probative value vs. prejudice standard is different than FRE 403 (discretionary exclusion)

In CRIMINAL cases, reputation and onion evidence of Victim’s character is NEVER admissible. Specific instances of Victim’s conduct are ONLY admissible to show:

(1) A third party is the source of semen or injury, OR
(2) Prior acts of consensual intercourse between Defendant and the alleged Victim

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

Question 8

Specific Instances of Defendant’s Bad Conduct (Prior Bad Acts)

Answer 8

In civil and criminal cases, specific instances of Defendant’s bad conduct is INADMISSIBLE to prove character (i.e. action in conformity therewith), but ADMISSIBLE to prove anything else. Prior acts evidence is admissible to prove: MIMIC

(1) Motive
(2) Intent
(3) Mistake (i.e. absence of mistake, knowledge)
(4) Identity (extremely similar or unique prior act)
(5) Common Plan or Scheme

Note: Prior acts evidence is always subject to FRE 403 balancing (probative value vs. unfair prejudice)