Character Evidence

Question 1

Is character evidence admissible to prove conduct in civil cases? Under FRE? Under CEC?

Answer 1

Inadmissible to prove conduct in both CEC and FRE, but one FRE exception: where claim is based on sexual assault or child molestation (CHOMO) defendant’s prior acts of sexual assault or child molestation are admissible to prove defendant’s conduct in the case.

Question 2

Civil tort action for assault arising out of rape. To prove defendant committed the tort, plaintiff offers evidence defendant committed other acts of sexual assault in the past. Admissible under Federal law? Under California law?

Answer 2

Admissible under FRE, not under CEC

Question 3

What are the major issues in using character evidence in a criminal case?

Answer 3

Is character evidence admissible to prove conduct of the defendant? Of the victim?

Question 4

Who must be the first to open the door to defendant’s character evidence in CA? Does Prop. 8 have any bearing on this?

Answer 4

Defendant. Prosecution cannot be the first to offer defendant’s character evidence (both FRE and CEC). Prop 8 does not change this rule.

Question 5

When may the prosecution be the first to offer evidence of defendant’s character in a criminal case?

Answer 5

(i) FRE and CEC: in cases of sexual assault or child molestation, evidence that D committed other acts of child molestation or sexual assault is admissible.
(ii) FRE: where court admitted evidence of victim’s character offered by accused, prosecution may offer evidence that accused has same character trait.
(iii) CA ONLY: in prosecution for crime of domestic violence or elder abuse, prosecution may offer evidence that defendant committed other acts of domestic violence or elder abuse
(iv) CA ONLY: where court has admitted evidence of victim’s character for violence offered by accused, prosecution may offer evidence that accused has violent character (narrow version of (ii))

Question 6

Defendant is charged with non-sexual assault
of an elderly woman. He claims self-defense because she attacked him first. Defendant has a long criminal record of violent assaults. During its case in chief, the state offers evidence of this criminal record. Admissible in federal or state
court?

Answer 6

FRE and CA: no, door to defendant’s character is closed when prosecution begins its case-in-chief

Question 7

Defendant is charged with sexual assault of an elderly woman. He denies committing the assault.
During its case in chief, the state offers evidence that defendant has committed other sexual assaults. Admissible in federal or state court?

Answer 7

FRE: Yes, sexual assault or child molestation

CA: Yes, same reason

Question 8

Defendant is charged with assaulting his wife, an act of domestic violence. He denies committing the assault. During its case in chief, the prosecution offers evidence defendant previously assaulted
his wife. Admissible in federal or state court?

Answer 8

FRE: No, the door is closed

CA: Admissible through the exception for domestic violence cases or elder abuse cases.

Question 9

Prosecution for assault. Victim claims that Defendant hit her. Defendant claims Victim hit Defendant first and that Defendant acted in self-defense. Defendant offers evidence that Victim has violent character. May prosecution now offer evidence that Defendant also has violent character?

Answer 9

FRE: yes- admissible b/c defendant offers evidence of victim’s character, prosecution allowed to admit evidence of defendant’s same character trait

CA: Yes, where defendant offers evidence of victim’s VIOLENT character, victim may offer evidence of defendant’s VIOLENT character

Question 10

Prosecution for theft of diamond ring. Victim claims defendant stole her ring. Defendant claims ownership of the ring and claims it was Victim who stole it and that defendant just took it back. Defendant offers evidence that Victim has character for dishonesty. May prosecution now offer evidence that Defendant has character for dishonesty?

Answer 10

FRE: Yes, admissible b/c defendant offers evidence of victim’s character, prosecution allowed to admit evidence of defendant’s same character trait

CA: Not admissible, the exception in CA is narrower and only applies to violent character evidence

Question 11

What types of character evidence of defendant are admissible on direct examination under FRE?

Answer 11

Reputation and Opinion, but not specific instances

Question 12

What types of character evidence of defendant are admissible on cross-examination under FRE?

Answer 12

Reputation, opinion, and specific instances.

Question 13

What types of character evidence of defendant are admissible on direct examination under CEC?

Answer 13

Opinion and Reputation

Question 14

What types of character evidence of defendant are admissible on cross-examination under CEC?

Answer 14

Opinion and reputation, NOT SPECIFIC INSTANCES

Question 15

Prosecution for assault. Defendant calls witness who testifies that, in his
opinion, the defendant is gentle. On cross-exam, prosecutor asks “Did you
know that the defendant kicked his evidence professor?” Admissible under
FRE? The CEC? Prop. 8?

Answer 15

Recognize first, that D opens the door by calling a witness to give opinion character evidence.

FRE: Yes.

CEC: No

Prop 8: no change

Question 16

What is the rule regarding admissibility of evidence of victim’s character to prove his conduct?

Answer 16

FRE and CEC: Prosecution cannot be the first to offer character to prove conduct

Prop 8: Does not change this

FRE Exception: in a homicide case the prosecution can be the first to offer evidence that a victim had a peaceful character if the defendant alleges the victim attacked first.

Question 17

What types of character evidence are admissible of victim on direct examination under FRE?

Answer 17

Opinion and Reputation

Question 18

What types of character evidence of victim are admissible on cross examination under FRE?

Answer 18

Opinion, Reputation, and Specific Instances.

Question 19

What types of character evidence of victim are admissible on direct, under CEC?

Answer 19

Reputation, opinion, and specific instances

Question 20

What types of character evidence of victim are admissible on cross, under CEC?

Answer 20

Reputation, opinion, and specific instances

Question 21

Defendant is charged
with non-sexual assault of an elderly woman. He alleges self-defense, claiming
she attacked him first. During its case in chief, prosecution offers evidence that
the little old lady who is alleged victim has a reputation for being peaceful and
gentle. Admissible under California law? Under federal law? What if this was a
homicide prosecution and defendant testified the elderly woman attacked first?

Answer 21

CEC: Inadmissible
FRE: Inadmissible, unless homicide.

Remember the door remains closed!

Question 22

Defendant is charged
with non-sexual assault of an elderly woman. He alleges self-defense, claiming
she attacked him first. During its case in chief, prosecution offers evidence that
the little old lady who is alleged victim has a reputation for being peaceful and
gentle. Defense calls witness to testify that the
little old lady is called “Psycho” back at the rest home because she has a
reputation for being violent. Admissible under federal law? California?

Answer 22

FRE: Admissible

CEC: Admissible

Door was opened

Question 23

Defendant is charged with non-sexual assault of an elderly woman. He alleges self-defense, claiming
she attacked him first. During its case in chief, prosecution offers evidence that the little old lady who is alleged victim has a reputation for being peaceful and gentle. On direct examination defense witness testifies that the victim once attacked her roommate. Admissible under federal law? California?

Answer 23

FRE: Inadmissible

CEC: Admissible

Question 24

What is the rape shield law?What is the impact of Prop 8?

Answer 24

Limits defense evidence of alleged victim’s character when offered to support defense of consent.

Prop 8 does not apply to evidence barred by this rule.