Character Evidence

Question 1

When is character evidence prohibited?

Answer 1

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(a)(1).

Question 2

What are exceptions for allowing character evidence?

Answer 2

Defendant or Victim 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. Rule 404(a)(2).

Question 3

Can evidence of a witness’s character be admitted?

Answer 3

Yes. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

Rule 404(a)(3).

Question 4

When evidence of a person’s character or character trait is admissible, how can it be proved?

Answer 4

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. Rule 405(a).

Question 5

When can character trait be proved by specific instances?

Answer 5

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(b).

Question 6

Can a witnsess’s character be supported or attacked?

Answer 6

Yes. 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.

Question 7

Is extrinsic evidence allowed to prove specific instances of a witness’s conduct

Answer 7

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. Rule 608(b).

Question 8

By testifying on another matter, does a witness waive any privilege against self-incrimination?

Answer 8

No. 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. Rule 608(b).

Question 9

What is Rule 404(b)(1)?

Answer 9

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.

Rule 404(b)(1).

Question 10

When is evidence of other crime, wrongs, or other acts permitted?

Answer 10

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.

Rule 404(b)(2).

Question 11

Is there a notice requirement for admitting evidence of crime, wrongs, or other acts?

Answer 11

Yes. 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.

Rule 404(b)(2).

Question 12

What is Rule 406?

Answer 12

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.

Question 13

Does a court admit habit evidence is it is uncorroborated or without an eyewitness?

Answer 13

Yes. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Rule 406.

Question 14

When is evidence not admissible in a civil or criminal proceeding involving alleged sexual misconduct?

Answer 14

(1) evidence offered to prove that a victim engaged in other sexual behavior;
(2) evidence offered to prove a victim’s sexual predisposition

Rule 412(a).

Question 15

What are the exceptions to Rule 412 in a criminal trial?

Answer 15

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

(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

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

Question 16

What are the exceptions to Rule 412 in a civil trial?

Answer 16

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.

Question 17

What is the procedure to determine admissibility of Rule 412?

Answer 17

(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:

(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;

(B) do so at least 14 days before trial

• unless the court, for good cause, sets a different time;

(C) serve the motion on all parties; and

(D) notify the victim or, when appropriate, the victim’s guardian or representative.

(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.

Rule 412(c).

Question 18

May a court allow evidence of similar crimes in sexual-assault cases?

Answer 18

Yes. In a criminal case in which a defendant is accused 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.

Rule 413(a).

Question 19

What must prosecutor do to submit evidence of prior sexual assault cases?

Answer 19

(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.

Rule 413(b).

Question 20

What is the definition of sexual assault under Rule 413?

Answer 20

Sexual Assault means a crime under federal law or under state law involving:

(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body—or an 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 from inflicting death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).

Question 21

Can the court allow evidence of similar crimes in child-molestation cases?

Answer 21

Yes. 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.

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.

Rule 414(b).

Question 22

In a civil case, may the court admit evidence of similar acts involving sexual assault or child molestation?

Answer 22

Yes. 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.

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 witnesses’ 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.

Question 23

Can D testify about his own habit?

Answer 23

Yes

Rule 406.

Question 24

How does the court decide whether a trait is a habit?

Answer 24

Court weighs:

1. How routine the behavior is (words like “always” or “everytime” tend to refer to habit; whereas words like “often” refer more to character);
2. How automatic the behavior is (e.g. putting on your seatbelt everytime you get in the car); and
3. How specific the behavior is (general things like carefulness are not habit, but rather a character trait)

Rue 406.