Character Evidence

Question 1

D1 is being criminally prosecuted in federal court for tax evasion. During its case in chief, P calls to the stand D1’s neighbor, W1, who offers to testify that D1 has a reputation for being dishonest. D1 objects. Should the judge sustain or overrule D1’s objection?

A. OVERRULE the objection, because W1’s testimony is admissible as an exception to the general rule prohibiting character evidence
B. SUSTAIN the objection, because D1 has not yet opened the door to W1’s testimony under the “mercy rule”
C. SUSTAIN the objection, because W1’s testimony is inadmissible for impeachment purposes
D. BOTH (B) and (C) are correct.

Answer 1

D. BOTH (B) and (C) are correct.

Question 2

Same case as the previous question: D1 is being criminally prosecuted in federal court for tax evasion.

During his case-in-chief, D1 calls to the stand W2, who will testify that in his opinion, D1 is an honest man. Is W2’s testimony admissible?

Select one:
A. NO, because W2’s testimony does not concern D1’s specific instances of honesty
B. YES, but only if W2’s testimony is considered by the jury solely for the purpose of establishing the credibility of D1
C. YES, because the character trait of honesty is pertinent to the crime of tax evasion with which D1 was charged
D. NO, because no exception to the general rule prohibiting character evidence applies

Answer 2

C. YES, because the character trait of honesty is pertinent to the crime of tax evasion with which D1 was charged

Question 3

Same case as the previous question: D1 is being criminally prosecuted in federal court for tax evasion. During his case-in-chief, D1 calls to the stand W2, who will testify that in his opinion, D1 is an honest man.

On cross-examination of W2, the prosecution wants to ask him whether he knows that D1 was convicted of theft by false pretenses six months ago. Is this testimony admissible?

Select one:
A. YES, because D1 was convicted of false pretenses rather than merely being charged with that crime
B. YES, because one of the prosecution’s options here is to cross-examine D1’s character witness concerning specific bad acts
C. NO, because W2’s credibility is not at issue
D. NO, because only reputation or opinion testimony is allowed

Answer 3

B. YES, because one of the prosecution’s options here is to cross-examine D1’s character witness concerning specific bad acts

Question 4

Same case as the previous question: D1 is being criminally prosecuted in federal court for tax evasion. During his case-in-chief, D1 calls to the stand W2, who will testify that in his opinion, D1 is an honest man.

On cross-examination of W2, the prosecution wants to ask W2 whether he was convicted of driving while intoxicated (a misdemeanor) three years ago. Is this testimony admissible?

Select one:
A. YES, because W2 was convicted of the charge rather than merely charged or arrested
B. NO, because driving while intoxicated is neither a felony nor a crime involving dishonesty or false statement
C. NO, because driving while intoxicated is not pertinent to the charged crime of tax evasion
D. YES, but only if the probative value of the evidence outweighs its prejudicial effect to D1

Answer 4

B. NO, because driving while intoxicated is neither a felony nor a crime involving dishonesty or false statement

Question 5

Same case as the previous question: D1 is being criminally prosecuted in federal court for tax evasion. During his case-in-chief, D1 calls to the stand W2, who will testify that in his opinion, D1 is an honest man.

On cross-examination of W2, the prosecution wants to ask W2 whether he was charged with writing a bad check a year ago even though Murray was later acquitted. Should the judge allow this question?

Select one:
A. NO, if the court determines that writing a bad check is not pertinent to the charged crime of tax evasion
B. NO, because W2 was never convicted of writing a bad check
C. YES, but only if the prosecution can show that the probative value of the evidence outweighs its prejudicial effect to D1
D. YES, because writing a bad check involves a specific act of dishonesty

Answer 5

D. YES, because writing a bad check involves a specific act of dishonesty

Question 6

Same case as the previous question: D1 is being criminally prosecuted in federal court for tax evasion. During his case-in-chief, D1 calls to the stand W2, who will testify that in his opinion, D1 is an honest man.

On rebuttal, the prosecution calls W1 to the stand to testify that D1 has a reputation for being dishonest. D1 objects. Should the judge sustain the objection?

Select one:
A. NO, if D1 is charged with a felony
B. YES, unless the prosecution had first introduced a character witness to testify about D1’s bad character for honesty
C. YES, because the testimony must concern specific acts relating to D1’s character, not W1’s opinion
D. NO, because the “mercy rule” applies

Answer 6

D. NO, because the “mercy rule” applies

Question 7

D1, a judge, is accused in a criminal case of attempting to extort $5000 from the victim in this case, V1, in return for appointing her as counsel for indigent defendants in his courtroom. D1’s defense is that V1 is the one who tried to extort him into giving her indigent appointments by threatening to tell his wife about their affair. In D1’s case in chief, D1 calls to the stand W1, the court reporter who works in the defendant’s courtroom, who will testify that V1 has a reputation for being dishonest. Should the judge allow this testimony?

Select one:
A. NO, unless V1 has already testified
B. YES, but only if D1 has first opened the door by offering a character witness to testify about his own character
C. NO, because the testimony concerns the victim’s character, not the defendant’s
D. YES, because such testimony qualifies for an exception to the general rule that character evidence is not admissible to prove conformity therewith

Answer 7

D. YES, because such testimony qualifies for an exception to the general rule that character evidence is not admissible to prove conformity therewith

Question 8

Same case as in the previous question: D1, a judge, is accused in a criminal case of attempting to extort $5000 from the victim in this case, V1, in return for appointing her as counsel for indigent defendants in his courtroom. D1’s defense is that V1 is the one who tried to extort him into giving her indigent appointments by threatening to tell his wife about their affair. In D1’s case in chief, D1 calls to the stand W1, the court reporter who works in the defendant’s courtroom, who will testify that V1 has a reputation for being dishonest.

For this question only, assume that this testimony is admissible. During its rebuttal case, can the prosecution properly call W2, who works as a lawyer in D1’s courtroom, to testify that D1 has a reputation for dishonesty?

Select one:
A. NO, because by introducing character evidence pertaining to V1, D1 opened the door only for the prosecution to respond with character evidence pertaining to V1, not D1
B. YES, because W2’s testimony is one of the options that the prosecution may use to respond to D1’s attack of V1’s character
C. NO, because only opinion evidence would be admissible here, not reputation evidence
D. YES, but only to impeach D1’s credibility

Answer 8

B. YES, because W2’s testimony is one of the options that the prosecution may use to respond to D1’s attack of V1’s character

Question 9

D1 is on trial for murdering his wife, V1. The prosecution seeks to call W1 in its case in chief to testify that, in her opinion, V1 was a peaceful person. D1 objects. How should the judge rule on this objection?

Select one:
A. SUSTAIN the objection, because D1 has not yet presented evidence that V1 was the first aggressor
B. OVERRULE the objection, because this case is involves a charge of homicide
C. SUSTAIN the objection, because D1’s credibility has not yet been attacked.
D. OVERRULE the objection, if the judge determines that the probative value of the evidence outweighs its prejudicial effect to D1

Answer 9

A. SUSTAIN the objection, because D1 has not yet presented evidence that V1 was the first aggressor

Question 10

Same case as the previous question: D1 is on trial for murdering his wife, V1.

But this time, in his case in chief, D1 testifies that V1 attacked him with a knife before he shot her. In its rebuttal case, the prosecution seeks to call W1 ito testify that, in her opinion, V1 was a peaceful person. D1 objects. How should the judge rule on this objection?

Select one:
A. SUSTAIN the objection, because D1’s credibility has not yet been attacked.
B. OVERRULE the objection, because D1 has first presented evidence that V1 was the first aggressor
C. SUSTAIN the objection, because although D1 presented evidence that V1 was the first aggressor, D1 did not present character evidence that V1 was the first aggressor
D. OVERRULE the objection, but only if the judge determines that the probative value of the evidence outweighs its prejudicial effect to D1

Answer 10

B. OVERRULE the objection, because D1 has first presented evidence that V1 was the first aggressor

Question 11

D1 is charged with sexual assault of an adult female, V1. Which of the following is admissible if offered by D1?

Select one:
A. Asking V1 whether she had sex with two men she picked up in a bar six weeks before the alleged crime
B. Asking V1 whether she had consensual sex with D1 three weeks before the alleged sexual assault
C. Introducing evidence that V1 was promiscuous
D. NONE of the above

Answer 11

B. Asking V1 whether she had consensual sex with D1 three weeks before the alleged sexual assault

Question 12

D1 is charged with child molestation for the assault of his six-year-old niece. The prosecution offers evidence that the defendant was charged with rape of his thirty-two-year-old neighbor three years ago. D1 objects. How should the judge rule?

Select one:
A. SUSTAIN the objection, because the evidence is not in the form of reputation or opinion
B. OVERRULE the objection, if the judge finds that the danger of unfair prejudice does not substantially outweigh the probative value of this evidence.
C. OVERRULE the objection, because specific-act evidence of prior sex crimes is admissible as an exception to the general rule
D. SUSTAIN the objection, because the evidence involves a prior sexual assault of an adult

Answer 12

D. SUSTAIN the objection, because the evidence involves a prior sexual assault of an adult

Question 13

D1 is charged with burglary with intent to commit theft. D1 defends on the basis that he broke into the victim’s house to get warm because it was a cold night. Can the prosecution properly introduce the fact that D1 was arrested for burglary with intent to commit theft four months ago?

Select one:
A. YES, if the judge finds that the danger of unfair prejudice does not substantially outweigh the probative value of the evidence
B. NO, because 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
C. NO, because D1 was only arrested for burglary; he was not convicted of burglary
D. YES, because the evidence is not greater than ten years old

Answer 13

A. YES, if the judge finds that the danger of unfair prejudice does not substantially outweigh the probative value of the evidence

Question 14

Same case as the previous question: D1 is charged with burglary with intent to commit theft. D1 defends on the basis that he broke into the victim’s house to get warm because it was a cold night.

D1 now decides to testify on his own behalf. On cross-examination, can the prosecution properly ask D1 whether he was convicted of the felony of aggravated battery six years ago?

Select one:
A. NO, unless D1 had first opened the door by introducing character evidence concerning his good character for a pertinent trait
B. YES, if the prosecution can show that the probative value of the evidence outweighs its prejudicial effect to D1
C. YES, unless D1 can show that the danger of unfair prejudice substantially outweighs the probative value of the evidence
D. NO, because evidence of prior crimes cannot be used to show the defendant’s propensity to commit that sort of crime

Answer 14

B. YES, if the prosecution can show that the probative value of the evidence outweighs its prejudicial effect to D1

Question 15

D1 is charged with aggravated robbery of V1, a taxi driver, at 1:45 a.m. on Main Street. V1 could not pick D1 out of a lineup, and D1 claims he was home asleep at the time of the robbery. The prosecution seeks to introduce the testimony of V2, a second taxi driver who was robbed the same night at 2:30 a.m. one mile away. V2 will will positively identify D1 as the man who robbed him. D1 objects. Should the judge overrule this objection?

Select one:
A. YES, because D1’s character here is an essential element of a charge, claim, or defense
B. YES, if the judge determines that the danger of unfair prejudice substantially outweighs the probative value of the evidence
C. NO, because the prosecution is prohibited from using evidence of D1’s character to prove that D1 acted in accordance with that character when he robbed V1’s taxi
D. NO, unless the modus operandi of the two crimes was sufficiently unique

Answer 15

D. NO, unless the modus operandi of the two crimes was sufficiently unique

Question 16

D1 is charged with possession of heroin with intent to deliver. Her defense is that the government entrapped her. To overcome the entrapment defense, the government must prove that D1 was predisposed to commit the offense when given the opportunity to do so. To establish D1’s predisposition, the government offers evidence that D1 sold heroin to an undercover officer three months after D1’s heroin possession that forms the basis of her current indictment. Is this evidence admissible?

Select one:
A. NO, because the sale of heroin to the undercover agent occurred after D1’s possession with which she is charged
B. YES, if D1 had first introduced a character witness who testified that she had a reputation for being law-abiding
C. YES, because this evidence tends to make it more likely that D1 did, in fact, possess the heroin that forms the basis for her charge
D. NO, because the government cannot introduce evidence of D1’s character or trait to prove that she acted in accordance with that character or trait when committing the charged crime

Answer 16

A. NO, because the sale of heroin to the undercover agent occurred after D1’s possession with which she is charged

Question 17

P1 sues D1 on a theory of negligent entrustment. P1 claims that D1 entrusted her car to Mr. Toonces, who then ran into P1 because Toonces was speeding. The tort of negligent entrustment would make D1 liable for entrusting her car to Toonces if D1 knew or should have known that Frank was a bad driver. At trial, P1 offers the testimony of W1, who will state that he has observed Toonces speeding on five occasions when W1 rode with Toonces. Should the judge admit this testimony?

Toonces the Driving Cat

Select one:
A. NO, unless had first opened the door to this testimony
B. YES, because even in a civil case, the “prosecutor’s rule” allows P1 to introduce this testimony as long as it isn’t used to show propensity
C. NO, because to be admissible under these circumstances, the evidence must be in the form of reputation or opinion only
D. YES, because Toonces’s character is at issue by virtue of the substantive law in the case

Answer 17

D. YES, because Toonces’s character is at issue by virtue of the substantive law in the case

Question 18

Same case as the previous question: P1 sues D1 on a theory of negligent entrustment. P1 claims that D1 entrusted her car to Mr. Toonces, who then ran into P1 because Toonces was speeding. The tort of negligent entrustment would make D1 liable for entrusting her car to Toonces if D1 knew or should have known that Frank was a bad driver.

Later in the trial, D1 offers the testimony of W2, who testifies that Toonces has the reputation of being a safe driver. On cross-examination, P1 wants to ask W2 whether he ever falsely told his landlord that he lost his job as an excuse for failing to pay his rent. D1 objects. Should the judge sustain D1’s objection?

Select one:
A. NO, because whether W2 ever falsely told his landlord that he lost his job as an excuse for failing to pay his rent is relevant to whether W2 has an untruthful character
B. YES, if the danger of prejudice outweighs the probative value of the evidence
C. YES, because whether W2 was untruthful with his landlord has nothing to do with whether Toonces is a safe driver and is thus outside the scope of cross-examination
D. NO, if P1 lacks a good-faith basis for asking this question

Answer 18

A. NO, because whether W2 ever falsely told his landlord that he lost his job as an excuse for failing to pay his rent is relevant to whether W2 has an untruthful character

Question 19

D1 is charged with armed robbery. During his case in chief, D1 decides to take the stand and testify. On cross-examination of D1, the prosecution seeks to ask D1 whether he once lied on his tax return. D1 objects. How should the judge rule?

Select one:
A. SUSTAIN the objection, because lying on his tax return is not relevant to whether D1 committed the crime of armed robbery with which he is charged
B. OVERRULE the objection, but only if D1 had earlier introduced a character witness who testified about D1’s character for truthfulness
C. SUSTAIN the objection, because only testimony in the form of reputation or opinion is allowed here
D. OVERRULE the objection, because the question is proper

Answer 19

D. OVERRULE the objection, because the question is proper

Question 20

Same case as in the previous question: D1 is charged with armed robbery. During his case in chief, D1 decides to take the stand and testify.

During the prosecution’s rebuttal case, the prosecution introduces W1, who will testify that in his opinion, D1 is an untruthful person. Should the judge allow this testimony?

Select one:
A. YES, because the prosecution is allowed to attack D1’s character in this manner
B. YES, but only if D1 had already introduced character evidence of his own good character for truthfulness
C. NO, because the testimony should have been in the form of reputation evidence
D. NO, because character for untruthfulness is not pertinent to armed robbery, the crime with which D1 was charged

Answer 20

A. YES, because the prosecution is allowed to attack D1’s character in this manner