Character Evidence, Specific Acts, and Habit Evidence

Question 1

What is the rule about character evidence in a civil case?

Answer 1

Inadmissible to prove conforming conduct: In a civil case, evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion.

Example: A plaintiff cannot introduce evidence that the defendant is a reckless driver to prove that the defendant drove recklessly on the day in question.

Character evidence is admissible, however, when character is an essential element of a claim or defense, rather than a means of proving a person’s conduct.

Question 2

Under what limited circumstances might character evidence be admissible (to prove conforming conduct) in a civil case?

Answer 2

1. Evidence concerning past sexual assault or child molestation by a defendant in a case in which the claim for relief is based on the defendant’s sexual misconduct is admissible. This includes evidence of specific acts.
2. Evidence concerning the past sexual behavior of a victim of sexual misconduct (e.g., rape) is admissible in limited circumstances.

NOTE: Recall that in civil cases, if character is at issue, evidence of that trait is admissible to prove an essential element of the case (i.e., for a non-propensity purpose).

Question 3

What are some examples of types of cases in which character is most commonly an essential element?

Answer 3

NOTE: Character is generally only at issue in civil cases.

Question 4

What is the rule about the prosecution’s use of character evidence in a criminal case?

Answer 4

Bad character cannot be used to show propensity.

In general, the same rule that applies in a civil action applies to the prosecution in a criminal case. The prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.

Question 5

May a criminal defendant introduce evidence of his good character as being inconsistent with the type of crime charged?

If a defendant offers evidence of his own good character, how can the prosecution respond?

Answer 5

Yes. The defendant’s character evidence must be pertinent to the crime charged.

Although the prosecution cannot introduce evidence of the defendant’s bad character, the defendant makes his character an issue in the case if he offers evidence of his good character. When the defendant “opens the door,” the prosecution is free to rebut the defendant’s claims by attacking the defendant’s character.

Question 6

If a defendant offers evidence of the victim’s bad character, how can the prosecution respond?

Answer 6

By introducing evidence of the victim’s bad character, the defendant “opens the door” for the prosecution to introduce evidence of his bad character. The prosecution’s evidence regarding the defendant must relate to the same character trait (e.g., violence) that the defendant’s evidence about the victim did.

Question 7

When a defendant seeks to show a pertinent character trait, what type of evidence may be used? With what type of evidence may the prosecution rebut?

Answer 7

Note: SIC = specific instance of conduct

Question 8

When the prosecution seeks to impeach the defendant’s truthfulness, what type of evidence may be used? With what type of evidence may the defendant rebut?

Answer 8

Question 9

a) A criminal defendant may introduce what type of evidence of the alleged victim’s bad character?
b) Generally, when may the prosecution offer rebuttal evidence of the alleged victim’s good character? What type of evidence?

Answer 9

a) reputation or opinion evidence of the alleged victim’s character if it is relevant to the defense asserted

As a practical matter, only happens in a homicide or assault case (violent cases) when the defendant is arguing that the victim started the altercation (self-defense).

Rape Shield Laws—the defendant in a sexual assault case may NOT introduce evidence of the alleged victim’s promiscuity.

b) Only after the defendant has introduced evidence of the alleged victim’s bad character. Reputation or opinion, but not specific acts.

The prosecution can then introduce evidence that the defendant has the same trait that he or she accused the victim of having.

Question 10

When it is admissible, how can character be proven?

Answer 10

Only through reputation or opinion testimony. Cannot be proved by specific bad acts.

Reputation: Testimony by witness sufficiently familiar with person’s reputation among associates or community.

Opinion: Testimony regarding witness’s opinion of person’s character based on witness’s personal knowledge and familiarity.

Question 11

For impeachment purposes, what can character evidence be used to show about the witness?

Answer 11

Character evidence about the witness may be introduced to show that the witness is not a person whose testimony should be believed. In such instances, the witness’s character for untruthfulness is relevant. When permitted, the witness’s testimony may be supported by testimony as to the witness’s character for truthfulness.

Question 12

When must the prosecution provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial?

Answer 12

When a criminal defendant requests. Such notice must generally be given before trial, but it can be given during trial when the court, for good cause, excuses the lack of pretrial notice.

Question 13

May specific acts be used as character evidence in a civil case?

Answer 13

Yes. When character evidence is admissible as evidence in a civil case (e.g., evidence that is an essential element of a claim or defense), it may be proved by specific instances of a person’s conduct as well as either by testimony about the person’s reputation or by testimony in the form of an opinion.

Question 14

May specific acts be used as character evidence in a criminal case? What are two general exceptions?

Answer 14

Generally, when character evidence is admissible as evidence in a criminal case (e.g., evidence of good character introduced by the defendant), specific instances of a person’s conduct are not admissible. Character must be proved by either reputation or opinion testimony.

Exceptions:

a) Non-propensity use (MIMIC): When a defendant’s bad act is not used to show the defendant’s criminal propensity but for another purpose (e.g., motive, identity), such instance of conduct may be admissible for that purpose.
b) Essential element of the crime charged: When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime.

Question 15

When a character witness is cross-examined, may the court allow a party to inquire into specific acts committed by the person about whom the witness is testifying?

Answer 15

Yes

Question 16

Evidence of a bad act that is otherwise admissible is especially subject to challenge under which FRE (and what does this Rule allow)?

Answer 16

Federal Rule 403, which permits the court to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice, etc.

Question 17

Can evidence of a person’s habit or an organization’s routine be admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion (propensity)?

Answer 17

Yes. Unlike character evidence, which is a general description of a person’s disposition, habit evidence indicates a person’s particular routine reaction to a specific set of circumstances to the point of being semi-automatic in nature.

The proponent has the burden of establishing that the evidence is inflexibly regular and proven by an adequate and representative sample.

Question 18

On the exam, how can you tell whether a fact is supposed to imply habit evidence or character evidence?

Answer 18

Habit is more specific than character evidence. On the MBE, words like “always” or “every time” generally refer to habit, whereas “often” or “frequently” are more likely to imply character evidence.

Question 19

When a criminal defendant offers evidence of a relevant good character trait, how may the prosecution respond?

Answer 19

This opens the door for the prosecution to rebut by introducing:

(a) Reputation/opinion testimony from its own witness about the D’s pertinent character trait, or
(b) Specific instances of conduct involving that trait, but ONLY on cross-examination of defendant’s witness.