Character Evidence Part II

Question 1

Character Evidence General Rule (Review)

Answer 1

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

Question 2

Character Evidence Exception to General Rule

Answer 2

When character is an element of the charge, claim or defense

Question 3

Examples of the exception - Criminal case

Answer 3

Entrapment Defense – to show the defendant had a character to be pre- disposed to commit a crime.

• Have to put forward defense of entrapment first.
• My client would not do this – good person
• Prosecution rebut: Really? Look at all these convictions, bad things he has done. He is predisposed to act that way. (Convictions are specific acts, but could use opinion or reputation evidence, too)

Question 4

Examples of the exception - Civil case

Answer 4

Tort – negligent entrustment

• Ex. You lend your car to someone who you know drinks a lot and is a fairly reckless person. Gets into accident. Injured person sues the person who lent the car for negligent entrustment. Needs to prove person knew of character for drinking a lot, recklessly driving. Knew that b/c knew of 2 prior incidents, and has seen him in the car before. That is where the plaintiff can prove this up and prove up bad character.

Defamation – truth/character is defense

• Someone says something bad about someone. Want to show truthful person. Truthful character can be a defense to
defamation suit.

Wrongful death – value of a life

• Defendant puts on evidence that person who died inflicted emotional distress on husband all of the time. Love not as strong as seems to be.

Child Custody – parent’s character at issue
• Character of parents comes in all the time. For these cases, can come in in all forms – opinion, reputation, specific instances.

Question 5

Type of Evidence Allowed

Answer 5

Opinion, reputation, specific instances

Question 6

Character Evidence To Prove Other Acts (not to prove character): MIMIC

Answer 6

Character Evidence to Prove Conduct on a Particular Occasion:

General Rule (Review):

• It is PROHIBITED to bring in evidence of a crime, wrong, or other act to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

EXCEPTION:

• This evidence may be ADMISSIBLE for another purpose, such as proving motive, intent, mistake of fact, identity, common plan or scheme. (MIMIC)
• Applies in Criminal and Civil Cases.

Question 7

Burden of Proof of Evidence

Answer 7

– Depending on what you are trying to prove depends on the necessity of the prior act to be similar or identical to the current act.

– For Example, to prove Identity you must show evidence as a “Calling Card”, “Fingerprint” or “Signature”]

• Evidence must be very similar
• Ex. In home alone, left the sink on after each burglary – calling card – not trying to say these are bad people, trying to show that we can prove the identity of the people who did a very similar act 3 mo. ago, etc. More likely than not the same bandits, even though do not have current ID.

Question 8

Method of admitting prior bad acts (specific acts):

Answer 8

– Usually done with direct testimony of person who witnesses such prior bad act.

– Can be done with a record of conviction.

• Maybe specific act defendant did in the past, had the same motive. Trying to prove same motive or mental state or intent by past crimes, imply by circumstantial evidence the intent of the current crime.

Question 9

Procedure

Answer 9

– PRIOR NOTICE required
• Proponent MUST give notice to court and opposing party.

– BALANCE TEST:
• Judge balances whether risk of admitting evidence “substantially outweighs” probative worth of evidence.

Note: Jury instruction – using evidence of offense not charged in this case – in email

o Identity: D was person who committed the offense alleged in this case 
o Intent
o Motive
o Knowledge
o Accident
o Common plan
o Consent