Character /Impeachment evidence

Question 1

What is the general rule for character evidence?

Answer 1

404(a)

Evidence that a person has a particular character trait is generally not admissible to show that the person acted in conformity with that trait at a particular time.

Question 2

Analysis for admissibility under 404(b)

Answer 2

o Is there a valid non-propensity purpose for this evidence?
 OAK MI PIMP

Opportunity Accident Knowledge
Motive Intent
Preparation Identity Mistake Plan

 If yes, move on to…

o Does this evidence pass the 403 balancing test?
 Prejudice >&raquo_space;Probative Value = Not Admitted
 Probative Value ≥ Prejudice= Admitted

Huddleston issue?

Question 3

What are the valid non-propensity purposes?

Answer 3

OAK MI PIMP 404(b)

Opportunity, Accident, Knowledge
Motive, Intent,
Preparation, Identity, Mistake, Plan

Question 4

Knowledge

Answer 4

can show prior bad acts to illustrate knowledge

factors: how many people have knowledge; how specific; how specialized (e.g., drug dealing v. international drug trade

Question 5

Knowledge data points

Answer 5

Hacking - in

drug dealing - out (Crowder)

Question 6

Motive data points

Answer 6

prior bad acts can be used to demonstrate motive

Presumed innocent video clip of affair

Peltier - warrant for murder to demonstrate that he didn’t want to be apprehended. let in but probably a borderline case.

Question 7

Identity

Answer 7

Can use prior crime to demonstrate identity if “sufficiently idiosyncratic to have a commonality of highly distinctive features”

Question 8

Identity data points

Answer 8

trenkler - radio shack bomber. previous bombing allowed.

Bennedetto - receiving cash in handshake. Not distinctive enough.

Pisari - only similarity was a knife

Question 9

Res Gestae

Answer 9

2 types:

1) part of the same crime (DeGeorge)
2) narrative integrity (Hite)

Question 10

Res Gestae Data Points

Answer 10

DeGeorge - inflated value of yacht on insurance and then sunk it claiming that a Russian submarine sunk it. allowed proof that he insured other boats because part of same crime.

Hite - Testimony that girlfriend recognized gun because husband pointed it at her head years ago was allowed because couldn’t tells tory without it.

Question 11

Absence of accident

Answer 11

Can bring up prior acts to rebut an accident claim by the defense.

Question 12

Absence of accident data points.

Answer 12

Burnett - prior act of beating dogs used to rebut claim that throwing dog into traffic was result of dog biting the def.

Cleaning gun case - def. claimed he shot wife while cleaning gun. Prosecution allowed to bring in prior similar “accident”

Question 13

Doctrine of chances

Answer 13

“very rare”

Not a rebuttal by prosecution like absence of accident. Allowed b/c improbability of events occurring the way they did.

Question 14

Doctrine of chances data points

Answer 14

Woods - foster parent had 20 children die of a rare condition. Allowed to bring in prior act b/c extremely unlikely.

Question 15

What is the standard used when bringing in a prior act? How sure does the prosecution need to be that the event happened?

Answer 15

Huddleston standard (FRE 104(b))

only out when no reasonable jury could make the finding that the act happened.

Question 16

What are the exceptions to the propensity rule 404(a)

Answer 16

1) If def. offers character evidence of a trait, prosecution can rebut (404(a)(2)(A))
2) If def. offers character evidence of a VICTIM’s pertinent trait, then prosec. can offer evidence to rebut and offer evidence of def. same trait. (404(a)(2)(B))
3) Victim in homicide case - prosec. may initiate inquiry into character of victim. (404(a)(2)(C))

Question 17

Who do 404(a) exception apply to

Answer 17

ONLY the def. and the victim.

Question 18

What is the methodology rule for 404(a) character exceptions.

Answer 18

FRE 405

Direct - only reputation and opinion

Cross - specific instances (beware of extrinsic evidence rule FRE

Michelson - def. brought 5 witnesses saying def. had reputation of honesty in community. DA brought specific incident of counterfeit watch. OK for both under 405

Question 19

Habit rule

Answer 19

THIS IS DIFFERENT THAN PROPENSITY

FRE 406 - evidence of a habit may be introduced to prove that the def. acted in accord with the habit.

Question 20

What is the difference between Habit and Propensity

Answer 20

Habit is predictable and predictive, reflexive. Deliberate and repetitive.

Habit is what a person ALWAYS does where propensity is what a person has a TENDANCY to do.

Question 21

Data points for habit

Answer 21

Halloran - exploding Freon using warming coil.

Wiel - doctor proscribed steroids instead of antihistamines w/ 8 patients. not habit because we don’t know how many total patients there were.

Question 22

Propensity - Sexual Assault cases

Answer 22

propensity is allowed in:

1) criminal cases where def. is charged with sexual assault. FRE 413
2) child molestation cases FRE 414

must be relevant instances of another sexual assault

Question 23

data point for sexual assault cases

Answer 23

Kirsch -

Guardia - Doctor charged with sexually assaulting patients. Prior instances not relevant b/c trial was about whether the doctor was engaged in a medical exam.

Question 24

What are the three types of non-character impeachment.

Answer 24

Past inconsistent statements
Bias
conflicting evidence of circumstances

Question 25

Is extrinsic evidence allowed for non-character impeachment?

Answer 25

Yes but not for character impeachment.

Question 26

What are the two types of character based impeachment?

Answer 26

Only to prove character for untruthfulness or to rebut attack of the same

Evidence in form of opinion or reputation (FRE 608(a)) (or specific acts on cross)

Evidence of past criminal convictions (FRE 609)

Question 27

What are the possible outcomes for criminal convictions to attack character?

Answer 27

FRE 609

Crimes of dishonesty - allowed (no 403) subject to 10 yr rule

Felonies for non-def. witness -allowed subject to 403 analysis - mostly in

Felonies for def. - probative v. prejudice (higher one wins)

crimes over 10 years - not admissible unless prob. value SUBSTANTIALLY OUTWEIGHS - mostly out

Juvenile record - Never against the def. or in civil cases. presumed out unless would be allowed as adult and essential to case

Question 28

what is the test for reputation testimony?

Answer 28

Must be acquaintance; in the witnesses community; know the circles the witness

(Michelson/Whitmore

Question 29

What are the limits of 608 evidence?

Answer 29

(1) must be probative of truthfulness/untruthfulness
 E.g. can’t merely testify that “P’s reputation is terrible”, not about truthfulness!
2) no extrinsic evidence to prove SIC
(3) trial court still must consider 403 balancing
(4) must have a good faith factual basis to ask questions about SIC
(5) independent duty of judge to protect witness from harassment/embarrassment (FRE 611(a)(3))

Question 30

What must be determined of all 608/609 evidence?

Answer 30

403 analysis.

Question 31

Can you use extrinsic evidence to prove specific instances of conduct?

Answer 31

No

Question 32

What is the rape shield rule

Answer 32

FRE 412(a) excludes two types of evidence in criminal or civil cases involving sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior
(2) evidence offered to prove a victim’s sexual predisposition

Question 33

Rape Shield Analysis

Answer 33

1) does the case involve sexual misconduct (emails, fantasies, dreams count)
2) Out if about other sexual behavior or sexual predisposition unless exception exist.

Question 34

What are the exceptions to the rape shield rule in crim cases?

Answer 34

412(b)

1) specific instances of V’s sexual behavior IF OFFERED TO PROVE SOMEONE OTHER THAN THE DEF. WAS SOURC OF PHYSICAL EVIDENCE>
2) specific instances of V’s sexual behavior w/ def. if offered to prove CONSENT
3. )when exclusion of the evidence would violate the def.’s constitutional rights.

Question 35

What are the exceptions to the rape shield rule in civil cases?

Answer 35

reverse 403 analysis.

Question 36

what if there is a conflict between 404(b) and 412?

Answer 36

412 wins because it’s more specific.

Question 37

What has a higher standard for admissibility opinion or reputation evidence?

Answer 37

Reputation: must know the witness, know the community, know circles of witness (Whitmore/Michelson)