Character Evidence Part I Flashcards
Definition of character
- Unique combination of human qualities that defines the essence of a person.
• He is good, or kind, or caring, or awful, or vicious, or selfish.
- Describing inclinations and suggesting their innateness.
- A person as being “by nature” cautious, or careless, or brave, or fearful, or combative, or affable.
- Traits shape a person’s natural tendencies.
- Character as evidence of conduct is significant because we infer specific inclinations, which are predictable, suggesting a pattern of behavior and telling us something about the likelihood that a person would or would not do certain acts.
- We may say a person is “by disposition” tricky or deceitful, or honest or fair. (Disposition to violence, etc.)
- We speak of the “propensity argument” which describes using proof of character as “substantive evidence of conduct on a particular occasion.”
Why offer character evidence?
- To serve as circumstantial evidence of how a person probably acted on the particular occasion in question.
- Want to show probably acted in conformity with character trait – dangerous/not allowed
- Was bad before so is bad now.
- To prove character when character itself is an ultimate issue in the case.
- Allowed when character is actually is an issue in the case
- Family law cases – what would be in best interest of the child – parent’s character may be an issue in the case
- Rarely an instance in a criminal case
- To impeach the credibility of a witness
What types of cases allowed in:
- Criminal Cases ONLY
- Civil cases – only if character is an ultimate issue in the case. (like defamation/slander). Ex. Tort case – not allowed b/c civil case.
Character Evidence - General Rule
Evidence of a person’s character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion
Character Evidence - Exceptions to General Rule
- Character of Defendant is being opened up in a:
- Criminal Case; and
- Offered by The Defendant; or
- By the prosecution to rebut the same.
- Character of Victim:
- Criminal case; and
- Offered by The Defendant against The Victim (Subject to FRE 412; or)
- By the prosecution to rebut the same.
[Either have character of defendant or victim. Cannot just dirty someone up based on character alone]
Character Evidence of Defendant
Character of Defendant to Prove Conduct on a Particular Occasion:
– Must be criminal case.
– Prosecution cannot present in case in chief.
– Defense may “Open the Door” by admitting character evidence of the defendant.
- Prosecutor cannot right off the bat do general character evidence.
- Defense must open the door.
– Once defense opens that door, prosecution may rebut that with evidence of the opposite characteristic.
- Still has to be relevant to case
- Maybe aggression – hostile mentality in assault/murder case. Person would never have started a fight, gentle. Prosecution can come back and say well did you know about these fights he started.
- Or maybe honesty/dishonesty case – fraud, embezzlement. Most honest person. Flip side – call witness who said no he is not, cannot trust him.
Character Evidence of Victim
Character of Victim to prove conduct on a Particular Occasion:
– Must be criminal case.
– Prosecution cannot present in case in chief.
– Defense may “Open the Door” by admitting character evidence of the victim.
– Once defense opens that door, prosecution may rebut that with evidence of the opposite characteristic for victim;
• Cannot bolster your own witness’ character. But if defense attacks your victim’s character, then that opens the door to character evidence.
– AND it opens door to character evidence of the Defendant of the same type of character trait.
• Simplest case: In defense’s case in chief – attacks the victim’s character. Then prosecution can rebut the victim’s character AND can attack the defendant’s character. Opening door up against both victim and defendant.
How to Prove Character Evidence
HOW does Defendant Open Door?
- Defense calls a witness to testify to reputation or opinion as to a character trait of the Defendant or of the Victim (Need foundation that person knows the person talking
about) - Reputation
- Opinion
- Specific Acts
Under Specific Acts:
o FRE - NO specific instances of conduct allowed; however not allowed to ask – did you hear about the time that victim picked another fight at the bar? Can only open the door with reputation and opinion testimony.
o CEC 1103 does allow it in CA, but only if character is also an element of the offense.
How to Prove Character Evidence (Prosecutor)
How does Prosecution Deal with Defense Opening the Door?
Prosecutor has 2 ways to handle the situation:
– Cross examination of defense Witness
- On how well know the person or reputation of person
- Can cross-examine with specific instances
– Rehabilitation of case with rebuttal character evidence (call own witness)
• Prosecution can call own witnesses to give opposite testimony – in opinion this person is dishonest, etc. using opinion or reputation
Cross Examination
- If Defense opened door by way of Opinion or Reputation evidence;
- Prosecutor should cross examine by questioning the foundation for that opinion or the reputation evidence.
Prosecution’s Cross Examination of Defense Character Witnesses
Okay to cross defense character witness using specific instances of conduct.
- So long as specific instances of conduct are relevant to the character trait the defense has put forward!
- Prosecutor MUST have good faith basis for questioning on specific instances of conduct.
- Cannot just make stuff up!
- Have to know about it – that can just be a police report. Does not need to be conviction or an arrest.
- Prosecution can slam someone if have a specific act. (Ex. Are you aware that 2 weeks earlier defendant beat up another patron at the bar? Regardless of how respond, looks like an idiot..If say “no did not know that” – you don’t prove that thing up)
How to Prove Character Evidence (Rebuttal)
Prosecution’s can present evidence in rebuttal of victim’s character:
- If defense presents evidence of D’s good character, Prosecution can present evidence of D’s bad character through prosecution’s own witnesses.
• Witnesses could testify to an opposite opinion or known reputation of D’s character trait.
- Prosecution’s can present evidence in rebuttal:
•If Defense presents evidence of V’s bad character, Prosecution can present evidence of V’s good character through prosecution’s own witnesses; AND present evidence of D’s bad character.
Character Evidence of Victim in Sex Cases
Rape Shield Statutes impose major restrictions on what can be brought in against a victim in Sexual Assault cases.
In Civil & Criminal Cases, Excluded:
- Evidence relating to the Victim’s past sexual behavior; and
- Opinion or reputation testimony about the Victim’s predisposition for sexual behavior.
- Specific instances of Victim’s past sexual behavior.
Exception in Criminal Cases - Sex Cases
• Specific instances of V’s past admissible if:
- The evidence is offered by the accused on the issue of whether the accused was the source of semen or injury or other physical evidence.
- Ex. Can ask if had sex with someone else earlier that night: is someone else the source of the injury/semen? But have to clear the question with a judge before you even ask it.
• The evidence relates to the V’s past sexual behavior with the accused, and is offered on whether there was consent.
- But cannot introduce evidence of the V’s past sexual behavior with persons other than the defendant, when offered on the issue of whether there was consent.
• Preventing such evidence would violate D’s constitutional rights. (Not easily testable)
Exception in Civil Cases - Sex Cases
May allow some sexual behavior or sexual predisposition evidence of victim, so long as its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
- CA – EC 1103: Sexual Predisposition evidence excluded (i.e. victim’s mode of dress, speech or life style)
