Character Evidence Flashcards
Prosecutor introduces testimony of defendant’s bad reputation for violence in her community in her case-in-chief. Inadmissible or Admissible?
Inadmissible. The testimony is inadmissible because the prosecution is not allowed to introduce evidence about the character of the accused except in rebuttal of character evidence offered by the accused. See Fed. R. Evid. 404(a)(1).
Civil case, negligent hiring, plaintiff introduces proof of employee bad character to prove that employee has tendency to steal from customers. Inadmissible or admissible?
Admissible.
Xanax tells the world that Yaz is dishonest. Yaz sues for slander and Xanax raises the defense of truth. Admissible?
Admissible. Character evidence is admissible because character is directly at issue. A trait of Yaz’s character (his character for dishonesty) is an essential element of the defense.
Negligence action. Defendant crashed into Plaintiff’s house. Plaintiff introduces testimony about the defendant’s character for negligence (or for prudence and care). Admissible?
Inadmissible. Defendant’s CHARACTER for negligence is NOT an essential element (ultimate issue). The ultimate issue is not whether defendant has a general character for negligence or for negligent driving, but whether he drove negligently on a particular occasion. Evidence that defendant had a negligent character (or a prudent and careful character) would merely be an evidentiary fact leading to an inference that defendant was negligent (or careful) on that particular occasion. Under the Federal Rules of Evidence, character evidence may not be used as an evidentiary fact in civil cases. Therefore, the opinion of defendant’s carpool that he was a prudent and careful or a negligent driver would be inadmissible.
Negligence action. Defendant crashed into Plaintiff’s house. Defendant introduces testimony from his carpool buddy that Defendant invariably uses his brakes and turn signals at every stop sign. Admissible?
Admissible for proof of habit. Notice keyword “invariably”. Rule 406 provides that “Evidence of the habit of a person . . . is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit.”
Negligence Action. Defendant crashed into Plaintiff’s mailbox. Defendant introduces testimony from his carpool buddy that he rarely if ever drives over 20 mph even when the speed limit is higher. Admissible?
Inadmissible, the particular habit is not directly relevant to this case since plaintiff does not claim that defendant was driving faster than 30 m.p.h. The only relevance of the testimony is to show a general propensity to exercise due care in driving an automobile, and when offered for this purpose it would be inadmissible character evidence.
Negligence Action. Defendant and Plaintiff involved in car accident. Plaintiff seeks to introduce proof of Defendant’s prior conviction of vehicular manslaughter. Admissible?
Most likely not. Rule 609(a) allows impeachment of witnesses by prior convictions punishable by imprisonment in excess of one year, unless the court determines that prejudice substantially outweighs probative value. One could argue that the testimony is probative because if a person is reckless with his car he may be reckless with the truth. Irresponsible people probably commit perjury more often than responsible people. On the other hand, the crime does not reveal extreme moral turpitude and its relationship to truthfulness is speculative. Moreover, there is a good chance that the jury will use it for an improper purpose. The jury may believe that because the defendant was reckless on a prior occasion he was reckless on this occasion. If I were the judge, I would rule that prejudicial effect outweighs probative value and exclude the testimony.
Proof that Carol Baskin purchased a hatchet and poison the day before her husband’s murder is admissible on what grounds?
In order to prove plan or preparation.
Testimony from an eyewitness that overheard Carol Baskin and her husband arguing over whether to sell the Big Cats park the day of his murder is admissible on what grounds?
Motive. It shows (1) that Carol might have murdered her husband to prevent the sale, and (2) that Carol apparently was not on good terms with her husband.
After Prosecutor completes case in chief, defense introduces their star witness who fumbles and struggles throughout his testimony. Defense introduces another witness who testifies about their opinion of how honest and truthful the star witness is. Admissible?
No. The credibility of a witness cannot be supported by character evidence unless the character of the witness for truthfulness has been attacked. Fed. R. Evid. 608(a). The testimony is not admissible.
Defense introduces testimony from Carol Baskin’s neighbor who will testify to Carol’s peaceful character and will say that she never saw Carol get into any fights with other men, including her husband. Admissible?
Inadmissible.
The testimony is inadmissible. In these circumstances, proof of character must be made by testimony as to reputation or in the form of an opinion. See Fed. R. Evid. 405(a). Otherwise, the trial would become too protracted because witnesses for both sides would testify about incidents of peaceful and non-peaceful conduct in Carol’s past. Note that Federal Rule of Evidence 405(b) is not applicable. It permits proof of character by testimony about conduct when character is an essential element of a charge, claim, or defense. Here, character is not an essential element. It is merely an evidentiary fact. Carol could have a generally violent character and still be innocent of this crime, and vice-versa.
Murder case. Defendant Carol Baskin did not testify, but Carol’s friend and neighbor testified to her peacefulness. After both the prosecution and defense rest their case-in-chief, the prosecution seeks to introduce evidence of Carol’s previous conviction for attempted murder 3 years ago. Admissible?
Inadmissible. (1) It is not admissible to show that Carol had a violent character. Although Carol has opened the door to character evidence, the evidence must take the form of reputation or opinion, not testimony about specific bad acts. (2) It is not admissible under Rule 609 to attack Carol’s credibility as a witness because Carol did not testify.
Robbery case. In his case-in-chief, prosecutor introduces evidence of defendant’s two prior convictions for robbery. On objection, prosecutor argues that the prior convictions to prove identity and show that defendant is most likely the culprit in the current robbery case as he has argued that he has an alibi and did not commit the robbery being litigated. Admissible?
Inadmissible. It is true that Federal Rule of Evidence 404(b) states that other crimes “may” be admissible to prove “identity.” However, it seems unlikely that this tentative phrase was intended to open the door to proof of prior robberies whenever there is an identity issue in a robbery case. That would be a dramatic change in prior law. It is more likely that the rule makers meant that a prior crime could be used to prove identity when, for example, the METHOD used in the prior crime was so nearly identical to that used in the crime charged as to earmark them both as the work of the defendant. Cf. McCormick on Evidence, § 190.
If the defendant in a murder case pleads self-defense and introduces evidence that the victim was a violent person, the prosecution may:
The defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence. However, once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with reputation or opinion evidence (but not evidence of specific acts, e.g., starting a bar fight) of the defendant’s bad character for the same trait. The prosecution cannot rebut with evidence of the defendant’s bad character for a different trait (e.g., cruelty is not the same as violence).
Which of the following is a permissible question on cross-examination of a character witness who has testified as to the defendant’s good character for peacefulness?
The prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about. Under Federal Rule 405(a), cross-examination inquiry is allowable as to whether the opinion witness knows of, as well as whether he has heard of, specific instances of the party’s misconduct. Thus, “Have you heard that the defendant punched his boss?” would be a permissible question because it tests the character witness’s knowledge of whether the defendant is peaceful. “Did you know that the defendant lied on his job application?” would not be a permissible question because this character witness has testified to defendant’s character for peacefulness, not honesty. Like any other witness, a character witness’s credibility may be impeached. Under the Federal Rules, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is probative of truthfulness (i.e., is an act of deceit or lying). Therefore, “Weren’t you arrested for assaulting a police officer last month?” is an impermissible question. Assaulting a police officer is not an act that is probative of truthfulness; thus, the character witness cannot be impeached with this prior bad act. Prior convictions are admissible to impeach a witness under certain circumstances. However, convictions of misdemeanors that do not involve dishonesty or a false statement are not admissible to impeach a witness. Thus, “Weren’t you convicted of misdemeanor public drunkenness two years ago?” is not a permissible question.
In a criminal rape case, under what circumstances may the defense introduce evidence of the alleged victim’s sexual behavior with a person other than the accused?
Generally, evidence of the alleged victim’s sexual behavior is inadmissible. However, there are exceptions. In a criminal case, where offered to prove the source of semen, injury, or other physical evidence, evidence of specific instances of sexual behavior by the victim with a person other than the accused is admissible. Where offered to prove consent, specific instances of sexual behavior between the victim and the accused are admissible. However, the victim’s sexual behavior with someone other than the accused would not be admissible for this purpose. In civil cases, evidence offered to prove the sexual disposition or behavior of the victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. However, this balancing test does not apply to criminal cases. Where relevant to show the defendant’s innocence, the defendant in a criminal case generally may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim. However, this rule does not extend to showing the bad character of rape victims.
If a defendant in a criminal case puts her character in issue, which of the following is an impermissible method of rebutting defendant’s character evidence?
If a witness denies knowledge of the defendant’s specific instances of misconduct, the prosecution may not prove the bad acts by extrinsic evidence. The prosecution may ask whether the defendant’s character witness knows of certain instances of a defendant’s misconduct. The prosecution may ask whether the defendant’s character witness has heard of certain instances of a defendant’s misconduct. The prosecution may rebut the defendant’s character evidence by calling other witnesses to testify to the defendant’s bad reputation for the trait involved.
In any __________ proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the alleged victim is generally __________.
Civil or criminal; inadmissible.
In a civil case involving sexual assault, evidence offered to prove the sexual disposition or alleged behavior of the victim will be admissible only if:
In civil cases involving sexual assault, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. The rule for criminal cases is different: Evidence offered to prove the sexual disposition or behavior of the alleged victim may be admissible in criminal cases only in specific instances, such as where evidence of specific instances of sexual behavior by the victim is offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence, or when specific instances of sexual behavior between the victim and the accused are admissible to prove consent.
Which statement regarding the admissibility of character evidence against a criminal defendant is true?
Once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with reputation or opinion evidence of (i) the victim’s good character for any pertinent trait, or (ii) the defendant’s bad character for the same trait. Character evidence is admissible in civil cases only when character is directly at issue in the case, but this rule is not applicable to criminal cases. Character evidence is admissible against a criminal defendant once the defendant “opens the door” to the prosecution’s use of such evidence. The prosecution may not initiate the use of character evidence against the defendant. The rationale for generally excluding it is that even though the evidence is of some relevance, the prosecution should not be permitted to show that the defendant is a bad person, since it may affect the jury’s impartiality. Regardless, if the defendant “opens the door” by introducing evidence of his good character or of the victim’s bad character, the prosecution may present evidence of the defendant’s bad character. Evidence of a defendant’s bad character may be introduced not only by cross-examination of the defendant but also by calling other witnesses to testify as to the defendant’s bad character.
In __________ cases involving sexual assault, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.
In civil cases involving sexual assault, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. The rule in criminal cases is different: Evidence offered to prove the sexual disposition or behavior of the alleged victim may be admissible in criminal cases only in specific instances, such as where evidence of specific instances of sexual behavior by the victim is offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence, or when specific instances of sexual behavior between the victim and the accused are admissible to prove consent.
In a __________ case where the defendant is accused of committing an act of sexual assault or child molestation, evidence of a defendant’s prior acts of sexual assault or child molestation is admissible.
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. The party who intends to offer this evidence must disclose the evidence to the defendant 15 days before trial (or later with good cause).
The defendant, a used car seller, is on trial for criminal fraud, charged with selling used cars with major mechanical problems while representing to buyers that the cars were mechanically sound. The defendant claims that she had no knowledge the cars were not fit for sale. At trial, the prosecution offers evidence to show that, eight months prior, the defendant was fired from a different used car lot for knowingly selling defective automobiles with major mechanical problems.
What is the best basis for admitting this evidence?
The best basis for admitting this evidence is as evidence of intent. Evidence of past crimes or misconduct may not be admitted to show the accused’s criminal character or her disposition to commit the present crime. However, such evidence is admissible to show the accused’s knowledge or to show lack of mistake. This evidence, then, may be admitted to show the defendant’s intent to commit criminal fraud. (A) is wrong because, as stated, the evidence cannot be admitted to show her criminal character. (C) is wrong because, even if the defendant had testified as to her lack of knowledge, she cannot be impeached by extrinsic evidence of prior bad acts. (D) is wrong because the prosecution is not alleging that the defendant is an incompetent used car seller but rather a dishonest one. Hence, the prosecution is offering the evidence to show criminal intent.
