Character Evidence

Question 1

Rule 404(a)

Answer 1

1) Prohibited Uses. 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.
2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
3) Exceptions for a Witness. Evidence of a witness’s character may admitted under Rule 607, 608, and 609.

Question 2

Rule 404(a)(2)

Answer 2

2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

Question 3

Rule 404(b)

Answer 3

(1) Prohibited Uses. Evidence of a crime, wrong, or other 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; Notice in a Criminal Case. 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. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial–or during trial if the court, for good cause, excuses lack of pretrial notice.

Question 4

People v. Zackowitz

Answer 4

Murder trial. Defendant supposedly shot and killed individual after he insulted wife. Judge allowed evidence showing that defendant owned three guns. Court of Appeals says that the only relevance of guns is to make defendant look like a desperate criminal. Character is never an issue in a criminal prosecution unless the defendant decides to make it one

Question 5

Miguel Mendez - Character Evidence Reconsidered

Answer 5

People don’t have stable and enduring predispositions, vary greatly across the circumstances. Behavior is heavily shaped by situational determinants, can’t infer how acted in situation B from behavior in situation A if they are not very similar. This suggests character isn’t even probative.
Interactionalism: research shows that behavior is largely shaped by specific situational determinants that do not lend themselves easily to predictions about individual behavior.

Question 6

Modus operandi

Answer 6

If we know defendant committed particular crime in past and the present offense matches that crime in idiosyncratic way, we can infer defendant also committed this crime. Not that this is defendant’s type of crime, but that this could not be anyone else’s crime

Question 7

United States v. Trenkler

Answer 7

Bomb exploded and killed police officer. Prosecution wants evidence that defendant had made bomb in previous incident that matched may of the same details - components, design, technique of assembly, etc. Court allowed in because of uniqueness of crime (bombing), probative value (expert said not a doubt the two bombs were connected), and uniqueness between the incidents - while not exact match, highly distinctive traits. Court gave limiting instruction to get around some 403 prejudice

Question 8

United States v. Stevens

Answer 8

Two robberies on military base conducted in similar manner. White victims ID defendant, black man, while black victim can’t ID him. Defense says that they should be able to admit this because blacks people are inherently better at IDing other black people than white people.
Appeals court agrees. 404(b) only about unfair prejudice against defendant. Reverse 404(b) allowed to come in - lower standard to bring in for defendant - has to be probative under 401 and not outweighed by 403 factors. Still can’t be propensity of other’s conviction or character (e.g. they are more likely than me). Here, it was for identity.

Question 9

United States v. Hite

Answer 9

Defendant charged with possession of revolver. Prosecution wants to have ex-fiance testify that defendant made her play a game of russian roulette. Judge allows her to testify that defendant had placed bullet in chamber, pulled trigger, but not that it was pointed at her or it was a game of Russian roulette. Finds those things too prejudicial.
But remember that prosecutor has narrative relevance under Old Chief. The facts of why this gun is memorable may be relevant to prove to jury. Judge doesn’t see it that way

Question 10

Doctrine of Chances

Answer 10

It is so statistically unlikely that an incident of a given nature would happen to the same person, that can’t be accidental, etc. Not about character, its about statistics. Similarity is very important, just like modus operandi, how ubiquitous. BUT, how do we know that this time was the bad time? What if earlier occurrence is the one that was intentional? Very controversial

Question 11

Rex v. Smith

Answer 11

Husband claimed wife was having fits, called doctor. Later she was found in bathtub dead. Same thing happened to two previous wives. Court allowed evidence of two previous wives (and that he inherited their money as well). Sheer impossibility of it happening three times without foul play make admissible. Look at: (1) similarity of incidences; (2) likelihood of incident; (3) timing between incidences

Question 12

United States v. Huddleston

Answer 12

Defendant accused of selling stolen tapes. Sale not in question, just if defendant knew they were stolen. Evidence of two prior acts where defendant sold large quantities of stolen goods. 404(b) only allows evidence of “similar acts” - defendant claiming this act is different because third party gave him goods to sell.
Court uses 104(b) (that jury could find by a preponderance of the evidence that past act occurred) rather than 104(a) (judge finds by a preponderance of evidence that act did happen) - bootstrapping allowed here. Can examine all evidence when making decision (low price, priors, etc.)
Protections from bootstrapping - (1) non-propensity (404(b)); (2) relevance (402 as enforced through 104(b)); (3) 403 balancing; and (4) any instructions necessary under 105

Question 13

Rule 406

Answer 13

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.
“Invariable regularity”

Question 14

Halloran v. Virginia Chemicals

Answer 14

Plaintiff injured when warming freon can in warm water to speed up flow and exploded. Wants to put on friend to testify that he saw him do same thing earlier in day. If you can only show one time, exclusion was justifiable. But if he can testify to seeing him on a sufficient number of times (no number stated by court), then he should be able to testify for habit.
Two factors for 406:
(1) lack volition (don’t even think about it - put on seat belt)
(2) can’t be punishable (assaults, regular drinking, etc.)

Question 15

Rule 405

Answer 15

Methods of Proving Character

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) 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.

Question 16

Michelson v. United States

Answer 16

Facts: D convicted of bribing an official; government proved a large payment was given to the agent by D for the purpose of influencing him. D admits passing money but claimed it was done in response to entrapment. On direct, he admitted having been convicted of a misdemeanor; called four witnesses who testified as to his reputation. Government asks each if violated trademark law and, over objection, if knew he had been arrested for receiving foreign goods. None had heard. Trial court let it in; limiting instruction not to take for truth given.
Holding: Affirmed. The law allows D to prove his good character, but only by opinion and reputation. Prosecution can cross to show that bad rumors, whether well grounded or not, were afloat. Trial judge has discretion to prevent abuse; can’t just waft rumors and innuendo. Ok to cross about arrest. Only need good faith. Jury probably doesn’t understand instruction not to take it for the truth, but D opened the door.
Specific acts are not to prove or disprove the character trait in question, only to rest the witness’s knowledge of the defendant’s reputation - always need limiting instruction to jury about how to use specific instances

Question 17

Rule 405(b)

Answer 17

Methods of Proving Character
(b) 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.
Examples:
(1) rebutting an entrapment defense – must show D likely to have done it anyways
(2) proving or rebutting a defense of truth in a libel or slander action – if a reporter calls someone a “thief” and a libel action ensues, battle over whether P is actually a thief.
(3) resolving parental custody dispute – judge must determine which parent is a better parent.

Question 18

Rule 607

Answer 18

Any party, including the party that called the witness, may attack the witness’s credibility.

Question 19

How to impeach

Answer 19

(1) Demonstrate Testimony is False. Show that they are mistaken (perception, memory, narrative accuracy).
(2) Demonstrate That LYING Now. Contradiction by conflicting evidence, prior inconsistent statement, bias (not character unless super-generalized) suggest lying
(3) Demonstrate That a LIAR Generally. Character: Show that they are a LIAR (Rule 608)

Question 20

Rule 608

Answer 20

A Witness’s Character for Truthfulness or Untruthfulness

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Question 21

United States v. Whitmore

Answer 21

Defendant being chased, police officer claims he threw gun away. Defendant wants to call three witnesses to testify on police officer’s character. Court disallows them because it is not proven that witnesses are acquainted with the officer, his community, or the circles which he moves.
Defendant also wants to cross officer on his suspended license and failure to pay child support. Appeals court said not being allowed to do this was error. Only have to be in possession of some fact which support a genuine belief that the witness committed the offense to which the question relates (less than Huddleston standard - only talking about truthfulness, not the truth)

Question 22

Rule 609(a)

Answer 22

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving–or the witness’s admitting–a dishonest act or false statement.

Question 23

Rule 609(b)

Answer 23

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Question 24

Rule 609(c)

Answer 24

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Question 25

Rule 609(d)

Answer 25

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.

Question 26

Eisenberg & Hans

Answer 26

a. Defendants with record MUCH less likely to testify (no record – 62%, record – 45%).
b. If defendant testifies, jury much more likely to find out about his prior than if he didn’t testify (did not testify – 8.8%, testified – 51.8%)
c. Upon learning about a D’s prior conviction, jury 36% more likely to convict (without conviction – less than 20%, with conviction – more than 50%).
d. In strong cases not good enough to convict, prior conviction might tip the jury to convict (makes up for evidentiary deficiencies)
e. Conclusion: judges considering the prejudicial effect of prior records should take into account the dramatic effect that knowledge of criminal record can have in close cases.

Question 27

United States v. Brewer

Answer 27

Defendant charged with kidnapping and transporting stolen vehicle. Prosecution trying to bring in evidence of 4 prior felony convictions (2 assaults, 1 rape, 1 kidnap).
Since D was released from prison for each of these charges within the last 10 years, none of them are barred by 609(b). For the kidnapping charge, D was released more than 10 years ago on parole, but reoffended and was placed back into custody. Since his release from that subsequent custody was less than 10 years ago, 609(b) doesn’t apply.
Five factors in determining whether probative outweighs prejudice for 609(a)(2): (1) nature of the crime (relating to truthfulness), (2) time of conviction and witness’ subsequent history, (3) similarity between past crime and charged crime, (4) importance of defendant’s testimony, (5) centrality of the credibility issue.
(1) Violent crimes have little connection to truthfulness (against admission); (2) D has been convicted of multiple crimes since first one (supports admissible); (3) kidnapping SAME crime, others not (against admission of kidnapping); (4) not that important (against); (5) D’s credibility is at issue here (supporting).

Question 28

Wissler & Saks - On the Inefficacy of Limiting Instructions: when Jurors Use Prior Conviction Evidence to Decide Guilt

Answer 28

a. Study: Gave people hypos and instructions not to use the prior convictions for propensity, just for credibility. Had D’s prior be perjury and one related to the charge.
b. Results: 56% said evidence of D’s prior conviction increased the likelihood he was guilty; 13% said it was the critical factor in their decision to find him guilty.
c. Conclusion: Jurors are happy to ignore instructions not to use prior conviction to gauge propensity and guilt; and it doesn’t change the D’s credibility much (already so low compared to other Ws)

Question 29

Hitchcock Rule

Answer 29

Cannot bring extrinsic evidence to show inconsistent evidence unless it would be probative itself if brought without the person’s testimony (e.g., W says that during an accident, a person was standing by the street. Opponent brings evidence that is false (it was a different person). This would be inadmissible because the fact of who was by the street is not alone relevant to the case)

Question 30

Rule 412(a)

Answer 30

(a) Prohibited Uses. 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.

Question 31

Rule 412(b)

Answer 31

(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
• When prosecutor has directly or indirectly asserted that the physical evidence originated with the accused, the defendant must be afforded an opportunity to prove that another person was responsible
(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
• Prior instances of sexual activities between the alleged victim and the accused, as well as statement in which the alleged victim expresses an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving that specific accused
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
• E.g. statements in which the victim has expressed an intent to have sex with the first person encountered on a particular occasion might not be excluded without violating the due process right of a rape defendant seeking to prove consent
(2) Civil Cases. 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.
Differs from 403 in three ways
• Shifts burden to proponent to demonstrate admissibility rather than making opponent justify exclusion
• Raises threshold for admission by requiring that the probative value of the evidence substantially outweigh the specific dangers
• Includes harm to the victim as well as prejudice to the parties

Question 32

People v. Abbot

Answer 32

1838 case where judge thinks prostitutes past sexual encounters matter in rape case. Anything that shoes it may not have been against will is admissible

Question 33

Wigmore

Answer 33

1. no judge should ever let a sex-offence charge go to the jury unless the female complainant’s social history and mental makeup have been examined and testified to by a qualified physician.
   a. ABA Committee (1938) – unanimously held by experienced psychiatrists that the complainant woman in a sex offense should always be examined by competent experts to ascertain whether she suffers from some mental or moral delusion or tendency, frequently found in young girls, causing distortion of the imagination in sex cases.

Question 34

State v. Smith

Answer 34

Facts: Child-V tells relative that D touched her inappropriately. D wants to admit evidence of prior accusations against other relatives that were later recanted. D says not prior sexual behavior, but prior state of mind. Trial court held hearing to see if accusations made and if they were false. Testimony that she never retracted from mother, younger brother said she did retract a different one. Trial court says there weren’t, and if there were should be excluded.
Holding: Prior false accusations are not prior sexual behavior; they go to credibility, not evidence of her past behavior. State equivalent of FRE 412 does not apply to this case.

Question 35

Rule 413

Answer 35

(a) Permitted Uses. In a criminal case in which a defendant is accsued of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statemetns or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does tno limit the admission or consideration of evidence under any other rule.
(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “State” is defined in 18 U.S.C. §513) involving:
1) Any conduct prohibited by 18 USC 109A;
2) Contact, without consent, between any part of the defendant’s body—or any object—and another person’s genitals or anus;
3) Contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;
4) Deriving sexual pleasure or gratification form inflicting death, bodily injury, or physical pain on another person; or
An attempt or conspiracy to engage in conduct described in subparagraphs (1)-(4).

Question 36

Rule 414

Answer 36

(a) Permitted Uses. 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.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.
(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:
1) “child” means a person below the age of 14; and
2) “child molestation” means a crime under federal law or under state law (as “state” is defined in 18 USC §513) involving:
A) any conduct prohibited by 18 USC 109A and committed with a child;
B) any conduct prohibited by 18 USC 110;
C) contact between any part of the defendant’s body—or any object—and a child’s genitals or anus;
D) contact between defendant’s genitals or anus and any part of the child’s body;
E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or
an attempt or conspiracy to engage in conduct described in subparagraphs (A)-(E).

Question 37

Rule 415

Answer 37

(a) Permitted Uses. 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. The evidence may be considered as provided in Rules 413 and 414.
(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witness’s statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.
Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

Question 38

Lannan v. State

Answer 38

D convicted of molesting child after evidence of previous child molestation was entered under Indiana’s common law “depraved sexual instinct” exception to the propensity ban. Child and others testified that D had previously sexually assaulted her.
Court reject the common law depraved sexual instinct exception. Fitting previous instances of sexual misconduct into 404(b) is “forcing a square peg into a round hole.”
1. Recidivism: General assumption the sex offenders offend more often than other convicts. But this is a misconception – studies show that they have lower rates (though, this might just be because it is reported less than other crimes). Drug offenses have certainly as much or higher recidivism but we don’t allow previous drug offenses in as propensity evidence.
2. Bolstering: Rule was based on the fact that most people wouldn’t believe someone would assault a child. That is not the understanding anymore – it is well known that this happens.
a. Prosecution Boost: Since credibility battles and difficult to get child victims to testify, need to help prosecution. But then we should just get rid of the rule in general – only doing this because V’s are sympathetic.
3. Prior sex crimes may still be brought for non-propensity reasons under 404(b). For example, may bring to show a common scheme/plan, or modus operandi.

Question 39

State v. Kirsch

Answer 39

D convicted of child molestation. At trial, prosecution brought evidence that he similarly molested other girls by getting close to them in a church group, and being a father figure (all children of families below poverty line, without father figures). Prosecution wanted to show as evidence of motive, intent, and common scheme/plan under 404(b).
Appeals court said TC erred in allowing molestation evidence under 404(b). The prior molestations did not validly go to motive, intent, or common plan/scheme.
i. Motive: He has a motive to assault young girls. This is textbook propensity.
ii. Intent: Goes to show he had the purpose of taking advantage of the girls. But this is propensity too – the only connection is the putative similarity of the activity.
iii. Common Plan/Scheme: This was all a scheme to get access to young girls. But it can’t just be a pattern/course of conduct – must be constituent parts of some overall scheme – MUST BE IN FURTHERANCE OF A “FINAL GOAL”

Question 40

United States v. Guardia

Answer 40

D charged with abusing patients during gynecological exams. Prosecution brought evidence through 4 witnesses that D had done the same thing to them previously.
TC rightly excluded prior sexual misconduct under 403. Three requirements of 413: (1) charge of sexual assault, (2) evidence of previous sexual assault, (3) relevant (propensity evidence always relevant). Allowed by 413, but still applicable to 403.
i. 2 ways to misconstrue 413: (1) always exclude under 403 (makes 413 superfluous), (2) always allow (they did not exempt 413 from 403, and other propensity exceptions are still applicable to 403 (404(a)(2)).
ii. Factors in determining level of probativeness: (1) similarity of prior acts to act charged, (2) closeness in time to prior acts to acts charged, (3) frequency of prior acts, (4) presence/absence of intervening events, (5) need for evidence beyond testimony of the D and V.
iii. HERE, there was substantial risk of confusing the issues because for each instance of abuse, an expert would have to demonstrate that it was improper (beyond scope of consent) – would add 4 instances in which this would have to occur.