Evidence

Question 1

4 Question Approach to Character Evidence

Answer 1

1. What is the purpose for which the character evidence is offered?
2. What method or technique is used to prove character?
3. Is it a civil or criminal case?
4. Does the evidence prove a pertinent character trait?

Question 2

What is the purpose for which the character evidence is offered? Three possibilities:

Answer 2

1. Offered to prove character because character is an issue in the case.
2. Offered to prove character as circumstantial evidence of a person’s conduct on the occasion in question.
3. Offered to impeach or support the credibility of a witness.

Question 3

What method or technique is used to prove character?

Answer 3

a. Specific acts of conduct
b. Opinion
c. Reputation

Question 4

Character evidence in civil cases is inadmissble when:

Answer 4

Character evidence is inadmissible to prove conduct
except where civil claim is based on sexual assault or child molestation.

• In such a case, defendant’s prior acts of sexual assault or child molestation are admissible to prove conduct in this case.

Question 5

Character Evidence in a Civil Case is Admissible When:

Answer 5

Character evidence admissible where character in issue.

Ex: Suit for defamation of character.

Question 6

Other civil cases where character is in issue are negligent entrustment (suit against parents claiming they were negligent to give the car to their teenage son, who they
knew to be reckless), child custody disputes, and loss of consortium cases.

What methods to prove character are OK when character is in issue?

Answer 6

All methods (i.e., specific instances of conduct, opinion, and reputation).

Question 7

Character evidence in criminal cases:

Answer 7

There are two doors to the admissibility of such evidence. Both are closed when the prosecution begins its case. Usually only the defendant can open these doors. Usually they are opened separately.

Question 8

Admissibility of evidence of defendant’s character to prove conduct in criminal case.

Answer 8

Prosecution cannot be first to offer such evidence.

The door is closed at the start of trial when the prosecution begins its case in chief.

Question 9

For Admissibility of evidence of defendant’s character to prove conduct in criminal case - what are the exceptions to the rule that the prosecution cannot be the first to offer such evidence?

(when can the prosecution offer character evidence of the defendant without the defendant opening the door?)

Answer 9

1. In cases of sexual assault or child molestation, prosecution can be first to offer evidence that defendant committed other acts of sexual assault or child molestation,
2. Where court has admitted evidence of victim’s character offered by defendant, prosecution can be first to offer evidence that defendant has same character trait.
   
   • Evidence must always concern a pertinent character trait

Question 10

Reputation, Opinion and Specific Instance Evidence Admissibility on Direct v Cross:

Answer 10

Assuming the door is open, reputation and opinion evidence are admissible on direct examination by any party, but not specific instances evidence.

On cross examination by any party, reputation, opinion, and specific instances are all admissible.

Question 11

Admissibility of evidence of victim’s character.

Answer 11

Most of the same rules apply. Prosecution cannot be first to offer character evidence to prove conduct: the trial begins with the door to the victim’s character closed. There are two ways defendant can open the door:

1. if defendant offers evidence of victim’s character, prosecution may rebut,
2. in a homicide case, if defendant offers evidence victim attacked first, prosecution may offer evidence of victim’s character for peacefulness.

Question 12

Reputation, Opinion and Specifc Conduct Evidence of Victim on Direct & Cross

Answer 12

On direct exam, reputation and opinion permitted but no specific instances. On cross, reputation, opinion and specific instances permitted.

Question 13

Rape shield statute in General

Answer 13

There are special rules, in criminal and civil cases involving rape or other sexual assault, limiting defense evidence of alleged victim’s character when offered to prove consent.

Question 14

Rape shield statute Criminal Case Rules

Answer 14

Reputation and opinion evidence inadmissible. Specific instances of alleged victim’s conduct admissible only to prove:

1. third party is source of semen or injury, or
2. prior acts of consensual intercourse between defendant and alleged victim.

Question 15

Rape shield statute Civil Case Rules

Answer 15

Reputation, opinion, and specific instances evidence is admissible if probative value substantially outweighs unfair prejudice and, in the case of reputation evidence, plaintiff put her reputation in issue.

Question 16

Purpose of MIMIC and What does it Stand for:

Answer 16

Specific instances of defendant’s bad conduct may be admitted to prove anything other than character that is relevant.

MIMIC:

1. Motive,
2. Intent,
3. Mistake [absence of mistake],
4. Identity,
   
   • Similarity and Uniqueness required to prove identity
5. Common Plan or Scheme.

Question 17

When can MIMIC be Excluded?

Answer 17

Discretion to exclude MIMIC evidence for unfair prejudice.

Question 18

Application of Doctor-patient privilege.

Answer 18

There is no doctor-patient privilege under the FRE but most states, including California, have adopted the privilege.

Remember that, in a federal court action arising under diversity jurisdiction, you will apply state privilege law on the MBE.

Also, sometimes an MBE question will simply assume the existence of the doctorpatient
privilege.

Question 19

Where the Doctor-Patient privilege applies, here is the law:

Answer 19

A patient has a privilege to prevent disclosure of information confidentially conveyed to a physician where the patient conveyed the information for the purpose of obtaining diagnosis or treatment and the information was pertinent to diagnosis or treatment.

1. Information must be intended by patient to be confidential.
2. Information conveyed to doctor must be pertinent to diagnosis or treatment.

Question 20

Exceptions to Doctor-PAtient Privilage

Answer 20

Privilege does not apply:

1. where the patient puts his physical condition in issue, as in a personal injury suit,
2. where physician’s services sought to aid in crime or fraud or to escape capture after a crime or tort,
3. in case alleging breach of duty arising out of physician-patient relationship, as in a malpractice action.
4. Some states (including California) do not recognize the privilege in criminal cases.

Question 21

Spousal Privileges

Answer 21

1. Spousal testimonial privilege permits witness to refuse to testify against his/her spouse as to anything. Applies only in criminal cases.
2. Spousal confidential communication privilege protects confidential spousal communications during marriage.

Applies in both criminal and civil cases.

For both privileges, there must be a legally valid marriage.

Neither privilege applies in civil action between spouses or in criminal prosecution where one spouse is charged with a crime against the other spouse or one of their kids.

Question 22

3 additional rules for Spousal Privileges

Answer 22

1. Testimonial privilege can apply to matters occurring before or during marriage.
2. Witness owns the privilege
3. Communication privilege applies if communication made during marriage. Both spouses own the privilege.