Character Evidence & Habit Flashcards
Character Evidence
Evidence regarding a person’s mental and moral qualities. (ex. Honestly, reliability, or violence).
- Generally, not admissible to show that a person acted in conformity with that character (i.e., propensity or proclivity evidence) (applies in both civil and criminal cases).
- May be admissible for purposes other than showing a person acted in conformance with that character, for example, to impeach a witness, or, in a criminal case, to prove motive or opportunity.
(Impeaching a witness means the questioning or discrediting of a witness’s veracity or reliability.)
Admissibility of Character Evidence in Criminal Cases
a. Character evidence may be admissible in a criminal case if the character trait is pertinent to the trial, and the Δ places it in issue.
b. A Δ may offer evidence of the Δ’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.
c. Subject to Rule 412 of the FRE, which bars evidence regarding the victim’s previous sexual conduct and predisposition in sexual-assault cases, the Δ may introduce character evidence about the victim if it is of a type that is pertinent to the charges against the Δ. Once introduced, the prosecution may rebut that evidence and also introduce evidence of the same trait in the Δ, if applicable.
d. 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.
Using Character Evidence to Impeach Witnesses in Civil and Criminal Cases
Evidence of a witness’s character is admissible in civil and criminal cases to impeach the witness.
Methods of Proving Character
a. Character may be proven by reputation testimony, opinion testimony, and specific instances of conduct.
b. Extrinsic evidence is never admissible.
c. Direct Examination—Reputation and Opinion
- If evidence of a person’s character is admissible, it may be proved on direct exam by testimony about the person’s reputation or testimony in the form of an opinion.
d. Cross-Examination—Specific Instances of Conduct
- If evidence of a person’s character is admissible, a party may ask a character witness about specific instances of the person’s conduct on cross-x.
- The purpose of an inquiry into a prior bad act under cross-x is to test the character witness’s credibility by showing how much the witness does or does not know about the person who is the subject of the character evidence.
- A court will not allow the examining party to prove the prior bad act with extrinsic evidence.
e. Character as an Essential Element
- If a character trait is an essential element of the claim, charge, or defense, the trait may be proved in a civil or criminal case by any method a party might use to prove any element of its case.
- Includes introducing reputation or opinion testimony as well as extrinsic evidence of specific instances of conduct (aka prior bad acts).
- The court must determine if character is an operative fact under the substantive law.
- The court will ask if proof, or a failure of proof, of the character trait will satisfy an element of the charge, claim, or defense.
Habit and Routine Practice
Habit is evidence of a person’s customs or standard response in a given recurring situation. Habit evidence is generally offered to demonstrate that a person acted in conformity with that habit on a particular occasion.
Evidence of an organization’s routing practice is admissible to demonstrate that the organization probably acted in accordance with that practice on a particular occasion.
Both habit and routine practice may be proven by evidence of specific instances of conduct or by opinion testimony.
Note: Habit evidence is admissible regardless of whether (1) it is corroborated, or (2) there was an eyewitness present.
(This is IF there is a habit (not nature or character), then we can ask the jury to conclude that on the day in question, the accused acted consistent with his/her habit)
Note that there need not be a witness on the day of, but there DOES need to be a general witness to the habit.
- Prior Sexual Misconduct as a Δ
a. Evidence of sexual assaults committed previously by the Δ is only admissible in criminal or civil cases directly involving sexual assault, and evidence of acts of child molestation committed previously by the Δ is only admissible in criminal or civil cases directly involving child molestation.
b. Unlike other character evidence in that the jury may consider it for the propensity
c. Note that child is defined as someone under the age of 14.
d. If a party intends to introduce evidence of prior sexual misconduct, it must inform the defendant at least 15 days prior to trial, or later with the court’s permission for good cause.
e. The defendant need only have committed the sexual misconduct—need not have been formally charged. (preponderance of the evidence standard)
Other Crimes, Acts, Transactions, and Events
a. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that the person acted in conformity with that character.
b. However, this evidence may be admissible for other purposes, e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
c. A crime, wrong, or other act may be admitted to show that a past act is so signature to the one in the instant.
d. May be admissible in both civil and criminal cases.
e. In evaluating whether evidence of a prior or subsequent crime, wrong, or other act is admissible, a court must determine that the evidence: (1) is offered for a purpose other than propensity, (2) is relevant for that purpose, and (3) is not, under Rule 403, substantially more unfairly prejudicial than probative.
A Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. 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.
(b) Specific Instances of Conduct. 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-x, 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.
Reputation Concerning Character
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: a reputation among a person’s associates or in the community concerning the person’s character.
Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.
- On cross-x of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character trait may also be proved by relevant specific instances of a person’s conduct.
