Character & Habit Flashcards
FRE 405 Methods of proving character
by specific instances of conduct (essential element of a charge)
by reputation or opinion (relevant specific instances of conduct)
FRE 404A Character Evidence; Exceptions for a Defendant or Victim in a Criminal Case:
The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) 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.
FRE 404 B (no propensity evidence rule)
i. evidence of another crime to show that a person’s character means they acted in accordance with that character trait
ii. can show SUCH AS motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
1. states with no such as means YOU MUST DEMOSTRATE WHY YOU ARE INTRODUCING W/E EVIDENCE
2. WA STATE, WHY YOU HAD TO ARGUE THIS AT TAUSEND
iii. notice: do so in writing before trial but court has latitude to admit stuff without notice for good cause
US v. Beechum
bad act was close in time and fairly close to the current charge
IF LOOKING AT A 404 PROBLEM CONSIDER 403
limiting instruction 105 if you’re worried about confusing jury
- FRE 803 (21)
exception to hearsay for character evidence
What comes in on 404A?
things can come in if the defendant make an issue of the victim or their own character
victim was first aggressor (homicide prosecution specifically)
defendant can show negative character trait of victim
FRE 405 methods of proving character
a. specific acts (relevant specific instances of the person’s conduct)
b. reputation evidence
Huddleston v. US
Evidence of a prior act should be admitted under an exception to Rule 404(b) if a jury could reasonably find that the defendant committed the prior act.
FRE 406 Habit, routine practice
a. evidence of a person’s habit or organization’s routine practice
b. we are looking for larger more general evidence of this thing
c. character: general, morally tinged, volitional (not generally as admissible)
d. habit: specific, response to particular situations, morally neutral large sample size
FRE 412 (b)
a. criminal cases the court may admit the following
b. evidence of specific victims sexual behavior to prove someone other than the defendant was the assailant from physical evidence
c. specific sexual misconduct between the victim and the defendant
FRE 407 Subsequent Remedial Measures
a. measures taken that you fixed something cannot be admissible to prove negligence, culpable conduct, defect in product/design, a need for warning of instruction
b. court may admit for other purpose, impeachment or if disputed—proving ownership, control, or the feasibility of precautionary measures
Sexual Assault Rules Criminal v. Civil
criminal the evidence is only admissible under the exceptions whereas in a civil case, it’s a balancing rule. still weighed against the evidence coming in
FRE 408 compromise offers and negotiations
CIVIL
a. settlements
b. can admit showing obstruction a criminal investigation, “bribery”
- FRE 410 CRIMINAL PLEAS
a. pleas, plea discussions, and related statements
b. you can waive this
c. some evidence rules are so fundamental that you cannot waive
ADMISSIONS
hypothetically speaking what if, rule removes the need for that because it becomes inadmissible if brought up in settlement offers
Prevention of Character or Habit Evidence Introduction
- FRE409 offering to pay medical or similar expenses
- same thing with 411 liability insurance
a. can introduce it for other reasons like bias
FRE 611 Trial Procedures
a. Court generally says anything the trial court does is fine
b. Trial court judges exercise control to avoid wasting time, make procedures effective, and protect witnesses
c. Scope of cross examination
d. Leading questions not to be used on direct examination except as necessary to develop the witness’s testimony
i. Allowed on cross
ii. When a party is a hostile witness, an adverse party
Jury Questioning
THERE IS NO RULE, minority rule: movement in the direction of permitting questions, but still the minority
i. Pro: satisfaction, engagement, what jurors want to know
ii. Cons: inappropriate questions, jurors start viewing themselves as advocates, we’ve never done this for a reason
FRE 615 Witness Exclusion from the Courtroom
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony
FRE 614 Judge Bringing/ Examining a Witness
- Calling: The court may call a witness on its own or at a party’s request
- Examining: The court may examine a witness regardless of who calls the witness
- Objections: (a) A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present (b) Likely to cause friction with the judge
- Policy: clear up confusion, particularly where testimony is unclear, to help manage trials
WA Civil Jury Instructions
i. Allowed to propose written questions to witnesses after the lawyers have completed their questioning
ii. Question to clarify testimony not express opinion
iii. Must remember role of neutral fact finder
