Character & Impeachment Flashcards
Character Evidence
Character Evidence is generalized information about a person’s behavior.
Character Evidence is generally inadmissible to prove conforming conduct. (It is regarded as not relevant and unduly prejudicial).
Banned Propensity Inference
Evidence of a person’s character or charqacter trait is not admissible to prove that on a particular occasion, the person acted in accordance with that character or trait.
Rule 404(a)(1)
Character Evidence in a Civil Case
Character evidence is inadmissible except where character is an essential element of a claim or defense:
- Defamation
- Negligent entrustment
- Child custody
Form of Character Evidence in a Civil Case
Generally, when character evidence is admissible as evidence in a civil case, it may be proved by specific instances of a person’s conduct as well as by either testimony about the person’s reputation, or by testimony in the form of an opinion.
Character Evidence in a Criminal Case
- Character evidence is inadmissible by the prosecution to prove that the defendant has a propensity to commit crimes and is more likely to have committed the crime in question.
- BUT - evidence of good character is admissible by the defendant … A defendant that offers evidence of good character opens the door for prosecution to rebut with evidence of relevant bad character.
Form of Character Evidence in a Criminal Case
Character evidence that is admissible is generally proven through the introduction of reputation or opinion testimony.
Generally, when character evidence is admissible as evidence in a criminal case, specific instances of conduct are not admissible (with exceptions).
Exceptions to the Rule Against Specific Instances of Conduct in a Criminal Case
As Character Evidence
Generally, when character evidence is admissible as evidence in a criminal case, specific instances are not admissible.
Exceptions:
1. When character or a character trait is an essential element of a crime or defense, relevant specific acts may be introduced (very rare)
2. When a character witness is cross-examined, the court may allow a party to inquire into relevant specific acts committed by the person about whom the witness is testifying.
Notes on Exception #2:
The lawyer who examines the witness must have a good-fath basis for believing the acts occurred before asking the witness about them.
If on cross-examination, the witness denies a specific instance of conduct, extrinsic evidence (i.e. documentation, other witnesses) is NOT admissible to prove that instance.
Character Evidence for Impeachment
Character evidence is admissible for impeachment purposes.
Any witness who takes the stand (including a party to the action) places character for truthfulness at issue in trial. Therefore, character evidence may be introduced to show that the witness is not a person whose testimony should be believed.
Form of Character Evidence to Impeach
Generally, character evidence used for impeachment purposes must be introduced through reputation or opinion testimony.
However, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the untruthfulness of (i) the witness, or (ii) another witness about whose character the witness being cross-examined has testified.
NOTE: The credibility of a witness cannot be bolstered – evidence of the truthful character of the witness is admissible ONLY AFTER the witness’s character for untruthfulness has been attacked
Habit Evidence
Habit evidence indicates a person or organization’s particular routine reaction to a specific set of circumstances to the point of being semi-automatic in nature.
Habit is more specific than character evidence.
Prior Bad Acts - Civil Cases
Generally, prior bad acts are inadmissible to prove that a defendant or other party has engaged in the bad or dishonest acts.
However, if character is directly at issue, prior bad acts can be relevant and admitted as substantive evidence to prove the character trait at issue. (Defamation, Negligent Entrustment, Child Custody)
Prior Bad Acts - Criminal Cases
Prior bad acts are inadmissible in criminal cases to prove defendant acted in conformity with the prior misconduct.
EXCEPTIONS: MIMIC Evidence
MIMIC Evidence
Prior bad acts are admissible in a criminal case to demonstrate:
- Motive
- Intent
- Lack of Mistake
- Identity
- Common Plan or Scheme (needs closeness in time and unique similarity)
As well as…
- Opportunity
- Preparation/Plan
- Consciouness of Guilt
- Knowledge
NOTE: Keep in mind, evidence of a prior bad act that is otherwise admissible is especially subject to challenge under the Rule 403 balancing test.
Prior Bad Acts Against a Witness
Prior bad acts are generally inadmissible against a witness.
Exception: Admissible on cross-examination of a witness, only to challenge the veracity of the witness’s testimony.
- Once a response is received, the person asking the question must live with the answer. No extrinsic evidence is allowed.
