Character Evidence Flashcards
PRIOR, SIMILAR OCCURRENCES
General rule
= must relate to time, event, or person in controversy to be admissible
If evidence concerns a time/event/person other than the one involved in the case at hand = inadmissible
PRIOR, SIMILAR OCCURRENCES
6 exceptions
- Plaintiff’s accident history
- Same event or condition
- Intent at issue
- Comparable sales
- Personal habit or industrial/business routine
- Industrial custom as SOC
PRIOR, SIMILAR OCCURRENCES
Plaintiff’s accident history admissibility
Admissible
- ONLY IF the cause of the plaintiff’s injury is at issue
- BUT ONLY to show that they were the cause of the injury, not the accident that the plaintiff is suing over
PRIOR, SIMILAR OCCURRENCES
Similar accidents caused by the same event or condition
admissibility
Admissible to prove 3 propositions
- That a defect or dangerous condition existed
- That the defendant had knowledge of the defect or dangerous condition
- That the defect or dangerous condition was the cause of the present injury
PRIOR, SIMILAR OCCURRENCES
Intent is at issue admissibility
Previous similar acts admissible to prove
- the party’s present motive or intent
- when such elements are relevant
PRIOR, SIMILAR OCCURRENCES
Comparable sales to prove value admissibility
The selling price of other property
- Of similar type
- In the same general location
- And close in time to the period at issue
= can be admissible to prove property at issue to prove value
PRIOR, SIMILAR OCCURRENCES
Habit admissibility
Admissible to prove that
- on a particular occasion
- the person acted in accordance with the habit
= Must be shown to be a regular response to a repeated specific situation
RULE 406
Habit
DEFINITION
one’s regular response to a specific set of circumstances
RULE 406
Habit
CHARACTERISTICS
- frequency
- particularity
RULE 406
PRIOR, SIMILAR OCCURRENCES
Routine admissibility
- Same as evidence of personal habit relevant to show conduct
= Evidence that a business or firm had an established business routine is relevant as tending to show that a particular event occurred
Habit
COMPARATIVE DEFINITION + EXAMPLE
Habit = more specific and particularized than character
Example = she always take a staircase two steps at a time
Character
COMPARATIVE DEFINITION + EXAMPLE
Character = one’s disposition in respect to general traits
Example = she’s always in a hurry
Frequency
= repetitive response
Particularity
= specific circumstance in which it occurs
PRIOR, SIMILAR OCCURRENCES
Industrial custom as SOC
Evidence of general custom or usage
- May be introduced by either party
- To establish a standard by which reasonable/ordinary care may be judged WHEN
a. General custom/usage is of the same kind of business
b. Under the same circumstances AND
c. One of the issues in dispute is negligence arising out of inadequate safety devices or precautions
How is evidence of general custom as evidence of SOC treated?
ADMISSIBLE but not conclusive
Business routine
COMPARATIVE DEFINITION
= particular conduct and habit of a party offered to show that the party acted in same manner on the occasion in question
Custom of the industry
COMPARATIVE DEFINITION
= offered to prove the actions of other persons in the same industry in an attempt to show adherence to or deviance from an industry-wide standard of care
3 considerations in allowing
CHARACTER EVIDENCE
- Purpose for which evidence of character is offered
- The method to be used to prove character
- The kind of case = civil or criminal
3 potential purposes of
CHARACTER EVIDENCE
- To prove character when character itself is ultimate issue in case
- To serve as circumstantial evidence of conduct on a particular occasion
- To impeach credibility with the witness’ poor character for truthfulness
CHARACTER EVIDENCE
general rule
- 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
RULE 404
3 types of
CHARACTER EVIDENCE
- specific acts
- opinion
- reputation
RULE 405
Specific Acts
DEFINITION
= evidence of specific acts as demonstrating character
Specific Acts
KEY TAKEAWAYS
- Permitted only in a few instances
- May be admissible if relevant for some other purpose
Specific Acts
EXAMPLE
where character is itself at issue
Specific Acts
FOUNDATIONAL REQUIREMENTS
- Witness testifies that they are familiar with a pertinent specific act or instance of conduct committed by the person whose character is at issue
- Witness testifies as to the foundational factors that demonstrate personal knowledge of the act
- Witness testifies as to the act itself
Opinion
DEFINITION
= witnesses who know the person testify regarding their opinions about the person’s character
Opinion
FOUNDATIONAL REQUIREMENTS
- Witness testifies they have known the person whose
character is at issue for a particular length of time - Witness testifies that during that time, the witness has had an opportunity to form an opinion of the person as to a pertinent character trait
- Witness testifies as to their opinion, but without revealing specific incidents that helped reach the opinion
Reputation
DEFINITION
= testimony as to person’s general reputation in community
Reputation
KEY TAKEAWAY
Most common means of showing character
Reputation
FOUNDATIONAL REQUIREMENTS
- The witness belongs to a certain community
- Broadly defined
- Includes towns, cities, workplaces, social organizations, military units etc. - The person whose character is at issue also belongs to that community
- The witness testifies that the person has developed a reputation in the community for a “pertinent” character trait
- The witness testifies as to the reputation
What is the general rule for using character evidence to impeach the witness’s poor character for truthfulness?
In civil or criminal case, that witness is subject to impeachment with evidence of poor character for truthfulness
Truthfulness
= propensity to lie on the witness stand
Methods of using character evidence to impeach the witness’s poor character for truthfulness
- Character witness could testify as to witness’s poor character for truthfulness
- Character witness could testify as to witness’s reputation in the community
- Evidence of certain kinds of prior bad acts
Types of certain kinds of prior bad acts
METHOD OF IMPEACHMENT OF WITNESS’S POOR CHARACTER FOR TRUTHFULNESS
- Kinds of criminal convictions
- Felonies
- Misdemeanors and felonies that involve dishonesty or false statement - Only admissible to impeach witness for character of truthfulness
- Must still weigh against prejudicial nature in 403 balancing test - Evidence of other bad acts involving deceit or lying
- Can only be proven by asking the witness, not other documents or witnesses
- Must accept her answer
When can you use character evidence to serve as circumstantial evidence of conduct on a particular occasion IN CRIMINAL CASES?
- Character of defendant
2. Evidence of victim’s character
Character of D in criminal case
CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION
- Prosecutor cannot offer evidence of D’s bad character to show that she acted in conformity with that character AS PART OF CASE IN CHIEF
- D can choose to offer evidence of good character trait and that she acted in conformity with that trait on occasion in question
- Prosecutor can offer evidence to REBUT if defendant chooses to present evidence of defendant’s own character
What happens when criminal D chooses to offer evidence of character trait and that she acted in conformity with that trait on occasion in question?
Opens the the door to prosecution rebuttal
2 permissible forms of prosecution rebuttal in criminal case
CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION
- Can cross-examine D’s character witness
2. Can call its own character witness
What is allowed when prosecution calls its own character witness to rebut criminal D’s evidence of character trait to prove acting in conformity with that trait on occasion in question?
Can give
- Reputation AND/OR
- Opinion testimony
- About D’s relevant trait
When D’s character witness gives reputation testimony, what questions must prosecution use to on cross to rebut in criminal case?
CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION
When character witness gives reputation testimony = have you heard questions are used
RULE 405 = testing a witness’s testimony
When D’s character witness gives opinion testimony, what questions must prosecution use to on cross to rebut in criminal case?
CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION
When character witness gives opinion testimony = did you know Qs are used
RULE 405 = testing a witness’s testimony
When must prosecution use “have you heard” Qs while cross-examining D’s character witness in criminal case?
CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION
When character witness gives reputation testimony = have you heard questions are used
RULE 405 = testing a witness’s testimony
When must prosecution use “did you know” Qs while cross-examining D’s character witness in criminal case?
CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION
When character witness gives opinion testimony = did you know Qs are used
RULE 405 = testing a witness’s testimony
KEY TAKEAWAYS
Cross-examining criminal D’s character witness to rebut
CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION
Using have you hear or did you know questions to ask about specific acts that run counter to reputation or opinion testimony
- Must have a good faith basis to believe that the specific acts are true
- Must be prepared to make an offer of proof to the judge and opposing counsel
- Must be relevant to trait relevant to alleged crime
- Must take witness’s answer (AKA cannot admit additional evidence to rebut answer)
When is evidence of victim’s character permissible in criminal cases to serve as CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION?
Permissible only in self-defense cases
How may criminal D introduce evidence of victim’s violent character?
- in a self-defense case
- to prove conduct in conformity with that violent character on the occasion in question (AKA that the victim was first aggressor)
- by calling character witness
- to give reputation and/or opinion testimony
- about that character trait
How may prosecution introduce evidence of victim’s character in a criminal case?
- If D chooses to offer evidence of victim’s violent character
- prosecution may rebut with
- victim’s good character and/or D’s bad character
- by calling a character witness
- to give reputation and/or opinion testimony
- about that character trait
When can character evidence be used to serve as circumstantial evidence of conduct on particular occasion in CIVIL CASES?
Rule = Character evidence to prove conduct in conformity is NOT PERMITTED
Rape shield laws
policy-based protections for victims of sex crimes
Victim
definition includes alleged victims
RAPE SHIELD RULE
Prohibited uses of victim’s character in sexual misconduct cases in CIVIL OR CRIMINAL case involving alleged sexual misconduct
- Evidence offered to prove that a victim engaged in other sexual behavior or
- Evidence offered to prove a victim’s sexual predisposition
RULE 412
Other sexual behavior
Includes
- Actual sexual activity
- Conduct that suggest or implies sexual activity and
- Evidence of sexual fantasies and activities of the mind
Rape shield rule
EXCEPTIONS IN CRIMINAL CASES
In criminal case, court may admit
- 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
- 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
- Evidence whose exclusion would violate the defendant’s constitutional rights
RULE 412
Rape shield rule
EXCEPTIONS IN CIVIL CASES
In civil case, 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
- evidence of a victim’s reputation only if the victim has placed it in controversy
RULE 412
To offer evidence of victim’s past behavior, what must a party do?
RAPE SHIELD RULE PROCEDURAL REQUIREMENTS
To offer evidence of victim’s past behavior, party must
- File a motion 14 days before trial, Describing the evidence and its purpose
- And serve the motion on all parties
- And notify the victim
RULE 412
Before admitting the evidence, what must the court do?
RAPE SHIELD RULE PROCEDURAL REQUIREMENTS
Before admitting the evidence, the court must
- conduct an in camera hearing
- And afford the victim and the parties a right to be heard
RULE 412
When is character in issue?
character is “in issue” when the substantive law must give the party no choice but to prove character if the claim or defense is to be substantiated
May character be an element in criminal and/or civil cases?
- Character is never an element in criminal case
2. Character can be element in civil case
Types of cases courts have found character evidence to be an essential element
Courts have found character evidence essential in the following types of cases
- The character of the plaintiff in a libel or defamation case,
- Character of an employee in a negligent hiring case,
- Character of the entrustee in a negligent entrustment case, and
- Character of the parents in a child-custody case
Rule in civil cases
CHARACTER EVIDENCE TO PROVE CHARACTER WHEN CHARACTER ITSELF IS ELEMENT
= 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
RULE 405
Analysis for specific acts evidence in civil cases
CHARACTER EVIDENCE TO PROVE CHARACTER WHEN CHARACTER ITSELF IS ELEMENT
- Is character or a trait of character the basis for an inference to prove conforming conduct?
- YES = general prohibitions of FRE 404(a) apply
- NO = Q2
- Is character or a trait of character is an essential element of a party’s case?
- YES = character is “in issue” and the general prohibitions of FRE 404(a)(1) do not apply
FRE 404(a)(1) - Prohibited Uses CHARACTER EVIDENCE
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
SPECIFIC ACTS OF MISCONDUCT
general rule
when a person is charged with one crime, extrinsic evidence of her other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition
SPECIFIC ACTS OF MISCONDUCT
exceptions
- Independent relevance
2. Prior acts of sexual assault or child molestation
SPECIFIC ACTS OF MISCONDUCT
permissible non-character uses - general exception
admissible if independently relevant =
- may be used to prove something more specific than just bad character
- BUT D must be actually contesting what evidence is used for
RULE 404(b)
SPECIFIC ACTS OF MISCONDUCT
permissible non-character uses - mneumonic
MIMIC
RULE 404(b)
SPECIFIC ACTS OF MISCONDUCT
permissible non-character uses
- Motive
- Intent
- Mistake or accident, absence of
- Identity
- Common scheme or plan
= MIMIC
RULE 404(b)
SPECIFIC ACTS OF MISCONDUCT
permissible non-character uses - huddleston rule
= Huddleston Rule
- Independently relevant uncharged misconduct by the D will be admissible
- Without a preliminary ruling
- As long as
1. There is sufficient evidence to support a jury finding that the D committed the prior act AND = RULE 401 STANDARD
2. Its probative value on the issue of motive, intent, identity, or other independently relevant proposition is not substantially outweighed by the danger of unfair prejudice = RULE 403 TEST
RULE 401 STANDARD + RULE 403 TEST
SPECIFIC ACTS OF MISCONDUCT
permissible non-character uses - special RULE 404(b) balancing analysis
- Is there a risk the evidence leads to an inference that the person had a propensity to behave in a certain way as a result of his or her character?
- Is there another purpose for which the evidence could be offered, other than the propensity inference?
- How effective will a limiting instruction be in containing the risk of unfair prejudice?
- Will the risk of unfair prejudice substantially outweigh the probative value of the evidence?
(Some courts reverse the traditional 403 analysis here, requiring the acts evidence must be more probative than prejudicial to be admitted)
When has the Court previously found a D presumed to be protected against undue prejudice?
SPECIFIC ACTS OF MISCONDUCT
permissible non-character uses
The Court has previously found that D is presumed to be protected against undue prejudice if:
- The evidence is offered for a proper purpose,
- The evidence is relevant,
- .The trial court made a FRE 403 determination, AND
- The trial court, upon request, instructed the jury that the evidence was to be considered only for the proper purpose for which it was admitted
RULE 404(b) KEY TAKEAWAYS
- Although often used to admit criminal acts, the rule is NOT limited to crimes (includes wrongs and acts, applies to both criminal and civil cases)
- The other act need not be “similar” to the current criminal offense or civil claim
- The other act need not have occurred prior to the charged offense
- The accused may offer evidence under FRE 404(b) to show that another person committed the charged crime
SPECIFIC ACTS OF MISCONDUCT
prior acts of sexual assault or child molestation - general exception
Rule =
- Evidence of a defendant’s prior acts of sexual assault or child molestation is admissible
- in a civil or criminal case
- where the defendant is accused of committing an act of sexual assault or child molestation
RULES 413-415
SPECIFIC ACTS OF MISCONDUCT
prior acts of sexual assault or child molestation - procedural requirement
The party who intends to offer this evidence must
- disclose the evidence to D
- 15 days before trial
- or later with good cause
RULES 413-415
