Class 10: Character Evidence to show Propensity in Criminal Cases; Methods of Proof - Feb. 8 Flashcards
May character evidence be admissible in a criminal prosecution? (Q)
Yes. Character evidence may be admissible in a criminal prosecution. Generally, character evidence is admissible if:
the character trait is pertinent to the trial, and the defendant places it in issue, or
it is introduced for a purpose other than proving that character, such as proving motive or opportunity.
If a defendant introduces character evidence, it is said that the defendant opens the door, and at that point, the prosecution may rebut that evidence.
May a criminal defendant introduce character evidence about a victim? (Q)
Yes. A criminal defendant may introduce character evidence about a victim if the evidence is of a type that is pertinent to the charges against the defendant. Once introduced, that evidence may be rebutted by the prosecution. The prosecution may also introduce evidence of the same trait in the defendant, if applicable. In homicide cases, the prosecution may introduce evidence about the victim’s character for peacefulness if the defendant claims self-defense.
Keep in mind that in prosecutions for sexual violence, evidence of a victim’s previous sexual conduct and predisposition is barred.
What is the mercy rule? (Q)
The mercy rule, applicable only in criminal cases, is an exception to the general ban on propensity evidence.
What does the mercy rule allow? (Q)
The mercy rule allows a criminal defendant to offer:
(1) evidence of the defendant’s own character or character trait, as long as the trait is pertinent to the crime or defense and
(2) evidence of a victim’s character or character trait, except in a sexual-assault case, if the trait is pertinent to the crime or defense. The prosecutor can rebut any evidence offered under the mercy rule.
If the defendant in a murder case offers evidence that the victim was the first aggressor, the prosecutor can rebut with evidence of the victim’s peacefulness.
Can a prosecutor offer rebuttal evidence under the mercy rule? (Q)
Yes. The prosecutor can offer rebuttal evidence under the mercy rule in three situations:
(1) If a criminal defendant offers evidence of his own pertinent character trait, the prosecutor can rebut that evidence.
(2) If a criminal defendant offers evidence of the alleged victim’s pertinent character trait, the prosecutor can rebut that evidence and also offer evidence of the defendant’s same trait.
(3) If a criminal defendant in a homicide case offers evidence that the alleged victim was a first aggressor, the prosecutor can offer evidence of the alleged victim’s trait of peacefulness.
Can the mercy rule be used in civil cases? (Q)
No. The mercy rule cannot be used in civil cases. The rule cannot be used by civil litigants, even if the acts underlying the case were criminal in nature.
The defendant allegedly used a sawed-off shotgun to rob a convenience store. The defendant was charged in federal court with armed robbery affecting interstate commerce. In his case-in-chief, the defendant offered testimony from his pastor that the defendant had a reputation for being truthful, peaceable, and law-abiding. The prosecution objected, arguing that the testimony was improper character evidence.
How should the court rule on the objection? (Q)
The court should overrule the objection. The evidence is proper character evidence under the mercy rule. Parties are generally banned from using character evidence to prove that a person acted in accordance with that character. However, the mercy rule permits a criminal defendant to offer evidence of a pertinent character trait. To be pertinent, a character trait must be relevant to the offense charged (e.g., an honest character is pertinent to a crime of theft and a peaceful character to a crime of assault). Evidence that the defendant is truthful or law-abiding is almost always pertinent.
Here, a character for peacefulness is pertinent to the crime of robbery. A character for being truthful and law-abiding is pertinent because the defendant has been charged with a crime involving theft. Thus, the evidence is admissible under the mercy rule and the court should overrule the objection.
The defendant was charged with assaulting a federal law enforcement officer. The defendant argued that the officer assaulted him first and that he acted in self-defense. In the defendant’s case-in-chief, he called a witness to testify that the officer had a reputation for aggression and violence. In her rebuttal, the prosecutor called a witness to testify that the defendant had a reputation in the community for violence when drinking. The defendant objected and argued that, because he offered only evidence of the victim’s pertinent trait, the prosecutor could rebut only with evidence of the victim’s pertinent trait.
How should the court rule on the objection? (Q)
The court should overrule the objection. A criminal defendant can offer evidence of his own or the victim’s pertinent character trait, which is an exception to the general ban on using character evidence to prove a person acted in accordance with that character (propensity evidence). A pertinent trait must be relevant to the offense charged. If the defendant offers evidence of his own pertinent trait, the prosecution can rebut only with evidence of the defendant’s trait. If the defendant offers evidence of the victim’s pertinent trait, the prosecution can rebut with evidence of the victim’s trait or the same trait in the defendant.
Here, the defendant offered evidence of the victim’s character for violence. The prosecutor could rebut with evidence of either the victim’s character for peacefulness or the defendant’s character for violence. Thus, the court should overrule the objection.
Once a defendant introduces reputation or opinion evidence of his own character or the alleged victim’s character under the mercy rule, what can the prosecutor do? (Q)
If a defendant calls a reputation or opinion witness to testify about the defendant’s or victim’s pertinent character trait under the mercy rule, the prosecutor has two options:
she can cross-examine the character witness about relevant specific instances of the defendant’s or victim’s conduct (FRE 405b) or
she can call her own reputation or opinion witness to testify about the defendant’s or victim’s pertinent character trait. (FRE 405a)
If the prosecutor cross-examines the character witness about specific instances of the defendant’s or victim’s conduct, the instances must be relevant to the character trait about which the witness testified. If the prosecutor calls her own witness, just like a character witness called for the defendant, this witness can testify only in the form of reputation or opinion and only about the same character trait addressed by the defendant’s reputation or opinion witness.
How do you use a person’s character to prove propensity? (Russo)
Three Critical points:
(1) Must be a criminal case a2
(2) Defendant must go first a2A
(3) Character trait must be pertinent a2A
(2/8)
What can character witnesses offer on direct examination? (Russo)
On direct, character witnesses may only offer opinion and reputation testimony (405a) (2/8)
What can character witnesses be asked on cross examination? (Russo)
On cross, character witnesses may be asked about specific instances at odds with opinion and reputation testimony (405a) (2/8)
Is extrinsic evidence permitted to prove or disprove specific instances of character? (Russo)
No. (404a2) (2/8)
