Character Evidence & Related Concepts

Question 1

Character evidence

Answer 1

generally NOT admissible to prove propensity (that a person acted in conformity with a character trait on a particular occasion)
- BUT character evidence is generally ALLOWED for non-propsensity purposes (ie, when character is an ultimate issue in the case –> defamation)

See below for specific rules when character evidence MAY be offered as circumstantial evidence to prove propensity

Question 2

(Criminal Cases)
D’s character

Answer 2

• D can ALWAYS offer evidence of his own pertinent character
• proseuction is NOT allowed to prove D acted in accordance with D’s pertinent character trait UNLESS D opens the door

Question 3

(Criminal Cases)
V’s character (NOT involving rape)

Answer 3

• D can offer reputation and opinion evidence to show V’s pertinent character to show D’s innocence
• if D presents evidence of V’s character, prosecution can offer evidence of:
  1. V’s good character (for same trait), OR
  2. D’s bad character (for same trait)

Question 4

(Criminal Cases)
V’s character (homicide case)

Answer 4

prosecution can show V’s peacefulness ONLY IF D claims V was the aggressor
- self-defense

Question 5

(Criminal Cases)
V’s character (involving rape/sex offenses)

Answer 5

generally NOT admissible to prove V’s sexual behavior/predisposition

Exceptions: court may admit evidence
- if offered to prove D was NOT involved in the sex crime,
- of sexual relations between D and V to prove consent (but, prosecutor may offer such evidence for any reason), OR
- if it’s exclusion violates D’s constitutional rights

Question 6

(Civil Cases)
Character Evidence General Rule

Answer 6

character evidence to prove propensity is generally NOT admissible in a civil case
- sexual misconduct exception

Question 7

(Civil Cases)
V’s Character (alleged sexual misconduct)

Answer 7

V’s sexual behavior/predisposition is admissible if it’s probative value substantially outweighs** the danger of:
1. harm to any V, AND
2. unfair prejudice to any party

V’s reputation is admissible ONLY IF the V has placed it in controversy

**like FRE 403 but reversed

Question 8

methods of proving character

Answer 8

• Direct examination: opinion, reputation
• Cross-examination: opinion, reputation, specific acts

Question 9

prior bad acts
(propensity)

Answer 9

(crimes, wrongs, acts)
Generally NOT admissible to show propensity

Sexual Assault / Child Molestation Exception: prior bad acts of sex crimes are ADMISSIBLE if D is accused of such conduct

Question 10

prior bad acts
(non-propensity)

Answer 10

is ADMISSIBLE for non-propensity purposes
- motive
- identity
- abence of mistake/accident
- intent
- common plan or scheme
- opportunity
- preparation

To offer such evidence, the proponent MUST show that:
1. the prior act was committed (by a preponderance of evidence), AND
2. the probative value substantially outweighs the danger of unfair prejudice (FRE 403)

Question 11

habit / routine practice

Answer 11

admissible to show that a person (or organization) acted in accordance with their habit or routine practice
- habit = a regular, almost automatic response to a repeated situation