Evidence III-Character Evidence Flashcards by John Murphy

What are the reasons to offer character evidence into court?

to prove character when character itself is ultimate issue in case, 2. to serve as circumstantial evidence of how a person probably acted, 3. to impeach credibility of witness

Evidence III-Character Evidence

Evidence>Character Evidence> Purpose for Offer of Character Evidence (III.A)
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What are the 3 major concerns governing the admittance of character evidence?

(i) the purpose for which evidence of character is offered; (ii) the method to be used to prove character; and (iii) the kind of case, civil or criminal.

Evidence III-Character Evidence

Evidence>Character Evidence (III)
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Can character evidence be offered to serve as circumstantial evidence of how a person probably acted?

It depends. It is the use of character as circumstantial evidence of how a person probably acted that raises the most difficult problems of relevance, especially in criminal cases.

Evidence III-Character Evidence

Evidence>To Serve as Circumstantial Evidence of How a Person Probably Acted (III.A.2)
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Must character evidence be admitted when a person’s character itself is the ultimate issue?

Yes. When a person’s character itself is the ultimate issue in the case, character evidence must be admitted. Cases where character is itself one of the material propositions in issue are confined mostly to civil litigation and are rare even among civil actions.

Evidence III-Character Evidence

Evidence>To Prove Character When Character Itself Is Ultimate Issue in Case (III.A.1)
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Can character evidence be offered to impeach the credibility of a witness?

Yes. Section IV goes into more detail.

Evidence III-Character Evidence

Evidence>To Impeach Credibility of Witness (III.A.3)
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What are the different types of means of proving character?

Depending upon the jurisdiction, the purpose of the offer, and the nature of the case, the following types of evidence may be used to prove character:

(1) Evidence of Specific Acts as Demonstrating Character
(2) Opinion Testimony
(3) Testimony as to Person’s General Reputation in the Community

Evidence III-Character Evidence

Evidence>Means of Proving Character (III.B)
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What is the general rule of admissibility of ‘Character’ in regard to civil cases?

Evidence of character to prove the conduct of a person in the litigated event is generally not admissible in a civil case. This is because its slight probative value of character is outweighed by the danger of prejudice, the possible distraction of the jury from the main question in issue, and the possible waste of time required by examination of collateral issues.

Evidence III-Character Evidence

Evidence>Character Evidence (III.C)
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What is the ‘Testimony as to Person’s General Reputation in Community’ method of proving character?

This is the type of evidence where testimony by witnesses as to a person’s general reputation in the community is in some sense hearsay, since reputation is really what people say about a person. On the other hand, because reputation is a general indication of character, and because it involves fewer side issues than either of the above methods, it is the most common means of showing character.

Evidence III-Character Evidence

Evidence>Character Evidence (III.B3)
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What is the ‘Opinion Testimony’ method of proving character?

This is the type of evidence where witnesses who know the person may testify regarding their opinions about the person’s character.

Evidence III-Character Evidence

Evidence>Character Evidence (III.B2)
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What is the ‘Evidence of Specific Acts as Deomnstrating Character’ method of proving character?

This type of evidence is permitted only in a few instances, such as where character is itself one of the ultimate issues in the case. Specific acts may be admissible if relevant for some other purpose.

Evidence III-Character Evidence

Evidence>Character Evidence (III.B1)
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How can the Defendant prove character?

Reputation and personal opinion testimony

Evidence III-Character Evidence

Evidence>Character Evidence (III.D.1)
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When can the accused introduce evidence of her good character?

To show her innocence of the alleged crime because it may have a tendency to show that she did not commit the crime charged.

Evidence III-Character Evidence

Evidence>Character Evidence (III.D.)
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What is “habit evidence”?

Habit describes one’s regular response to a specific set of circumstances. Since habits are more specific and particularized, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character. Thus, under FRE 406, evidence of a person’s habit may be admitted to prove that on a particular occasion the person acted in accordance with the habit.

Evidence III-Character Evidence

Evidence>Character Evidence (III.C.2)
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When is character evidence admissible?

Exception - When character is directly at issue: When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is “directly at issue”.

Evidence III-Character Evidence

Evidence>Character Evidence (III.C.1)
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How Can the Prosecution Rebut
Defendant’s Character Evidence
through Cross-Examination?

The Prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about.

In most jurisdictions, one is allowed to inquire on cross-examination whether the reputation witness has heard of particular instances of the D’s misconduct pertinent to the trait in question.

Cross-examination inquiry is allowable as to whether the opinion witness knows of, as well as whether he has heard of, specific instances of misconduct. If the witness denies knowledge of these specific instances of conduct, the prosecutor may not prove them by extrinsic evidence.

Evidence III-Character Evidence

Evidence > Accused in a Criminal Case -
Prosecution Cannot Initiate But Accused Can >
How Prosecution Rebuts Defendant’s Character
Evidence > Cross-Examination (3.D.2.a)
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Does D testifying put their

character or credibility at issue?

A Defendant does not put her character in issue merely by taking the stand and giving testimony on the facts of the controversy. However, if the D takes the stand, she puts her credibility in issue and is to impeachment.

Evidence III-Character Evidence

Evidence > Accused in a Criminal Case -
Prosecution Cannot Initiate But Accused Can >
How D Proves Character > Testifying Places
Defendant’s Credibility - Not Character - In issue
(3.D.1.b)
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How Can a Defendant Prove
Character through Personal Opinion
Testimony?

Under Federal Rule 405, the witness may also give his personal opinion concerning that trait (involved in the case) of the defendant. However, the witness may NOT testify to specific acts of conduct of the defendant to prove the trait in issue.

Evidence III-Character Evidence

Evidence > Accused in a Criminal Case -
Prosecution Cannot Initiate But Accused Can >
How D Proves Character > Reputation and Personal
Opinion Testimony (3.D.1.a)
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How Can a Defendant Prove
Character through Reputation
Testimony?

A Defendant puts her character in issue by calling a qualified witness to testify to the Defendant’s good reputations (or that he has heard nothing bad) for the trait involved in the case.

Evidence III-Character Evidence

Evidence > Accused in a Criminal Case -
Prosecution Cannot Initiate But Accused Can >
How D Proves Character > Reputation and Personal
Opinion Testimony (3.D.1.a)
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Once the defendant has introduced evidence of the alleged victim’s bad character for a pertinent trait, what may the prosecution counter with?

Reputation or opinion evidence of:

(i) the victim’s good character for the same trait, or
(ii) the defendant’s bad character for the same trait.

Example: Defendant is charged with the murder of Victim. Defendant pleads selfdefense and offers evidence that Victim was a violent person. Prosecutor can rebut such evidence with evidence that Victim was a nonviolent person and/or with evidence that Defendant is a violent person.

Evidence III-Character Evidence

Evidence> III Character Evidence (E)(2)
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When may the defendant introduce reputation or opinion evidence of a bad character trait of the alleged crime victim?

When it is relevant to show the defendant’s innocence. However, by
specific exception, this rule does not extend to showing the bad character of rape victims

Example: In an assault or murder prosecution where the defendant claims self-defense, she may introduce evidence of the victim’s violent character as tending to show that the victim was the aggressor

Evidence III-Character Evidence

Evidence> III Character Evidence (E)(1)
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When might the prosecution call its own character witnesses to testify to the defendant’s bad reputation or their opinion of the defendant’s character for a particular trait?

When the defendant puts their character in issue by having a character witness testify as to his opinion of the defendant or the defendant’s reputation:

the prosecution may rebut the defendant’s character evidence by calling its own character witnesses to testify to the defendant’s bad reputation or their opinion of the defendant’s character for the particular trait involved

Evidence III-Character Evidence

Evidence> III Character Evidence (D)(2)(b)
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Homicide Cases

When can Victim’s Character for Peacefulness be used to Rebut Self-Defense Claim?

In a homicide case in which the defendant pleads self-defense, evidence of any kind that the victim was the first aggressor (e.g., eyewitness testimony that the victim struck first) opens the door to evidence that the victim had a good character for peacefulness. [Fed. R. Evid. 404(a)(2)]

This evidence can be introduced regardless of whether the defendant has intro- duced character evidence of the victim’s generally violent propensity. The rationale behind this rule is that the victim’s death deprives the prosecution of the victim’s testimony as to the identity of the first aggressor.

Evidence III-Character Evidence

Evidence → Character Evidence → Victim in Crimial Case (III.E.3)
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Rape Cases

When is Victim’s Past Behavior Inadmissible ?

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the alleged victim is generally inadmis- sible. [Fed. R. Evid. 412(a)]

Evidence III-Character Evidence

Evidence → Character Evidence → Rape Cases (III.E.4)
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Rape Case

What Are The Exceptions in Civil Cases That Allow the Victim’s Past Behavior to be Admissible?

In civil cases, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim. [Fed. R. Evid. 412(b)(2)]

Evidence III-Character Evidence

Evidence → Character Evidence → Rape Cases (III.E.4.b)
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Rape Cases | What Are The Exceptions in Criminal Cases that allow the Victim's Past Behavior to be Admissible?

In a criminal case, evidence of specific instances of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence is admissible. Also, specific instances of sexual behavior between the victim and the accused are admissible by the prosecution, or by the defense to prove consent. Evidence of a victim’s sexual behavior is also admissible when its exclusion would violate the defendant’s constitutional rights. [Fed. R. Evid. 412(b)(1)] Evidence III-Character Evidence Evidence → Character Evidence → Rape Cases (III.E.4.a) ,

In criminal cases, is extrinsic evidence of other crimes or misconduct admissible?

Generally, when a person is charged with one crime, extrinsic evidence of her other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition. Thus, this statement of Federal Rule 404(b) is merely another way of saying that the prosecution may not show the accused's bad character to imply criminal disposition. The danger is that the jury may convict the defendant because of past crimes rather than because of her guilt of the offense charged. Evidence III-Character Evidence Evidence>Character Evidence (III.F) ,

If admissible, what is the notice requirement for evidence of other crimes or misconduct in a criminal case?

Upon request by the accused, the prosecution in a criminal case must provide reasonable notice prior to trial (or during trial if pretrial notice is excused for good cause shown) of the general nature of any of this type of evidence the prosecution intends to introduce at trial. Evidence III-Character Evidence Evidence>Character Evidence (III.F.1) ,

In criminal or civil cases, when is evidence of other crimes or misconduct admissible?

Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition to commit the crime charged. While acknowledging that prior acts or crimes are not admissible to show conformity or to imply bad character, Federal Rule 404(b) says that such prior acts or crimes may be admissible for other purposes whenever those issues are relevant in either a criminal or civil case. Evidence III-Character Evidence Evidence>Character Evidence (III.F.1) ,

What are examples of purposes for which prior acts or crimes may be admissible in a criminal or civil case?

Prior acts or crimes are not admissible to show conformity or imply bad character under Federal Rule 404(b), but may be admissible for other purposes, including motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, whenever these issues are relevant in either a criminal or civil case. Evidence III-Character Evidence Evidence>Character Evidence (III.F.1.a) ,

In rape cases, what is the procedure to offer evidence to prove an alleged victim's sexual behavior or sexual disposition under an exception?

To offer evidence of an alleged victim's sexual behavior or sexual disposition under an exception in a criminal or civil case, a party must file a motion within 14 days before trial describing the evidence and its purpose, and must serve the motion on all parties and notify the victim. Before admitting the evidence, the court must conduct an in camera hearing and afford the victim and the parties a right to be heard [Fed. R. Evid. 412(c)] Evidence III-Character Evidence Evidence>Character Evidence (III.E.4.c) ,

Explain or Define Identity in regards to relevant misconduct

Evidence, including misconduct, that connects this defendant to the crime (e.g., theft of gun used in later crime) is admissible. Similarly, evidence that the accused committed prior criminal acts that are so distinctive as to operate as a “signature” may be introduced to prove that the accused committed the act in question (modus operandi). Evidence III-Character Evidence Evidence - F(1)(a) p. 33 ,

Explain absence of mistake or accident

There are cases in which the defense of accident or mistake may be anticipated. In these situations prosecution evidence of similar misconduct by the defendant is admissible to negate the possibility of mistake or accident. Evidence III-Character Evidence Evidence - F(1)(a) p. 33 ,

What is Intent (in regards to relevant misconduct)

Evidence that defendant committed prior, similar wrongful acts is admissible to establish guilty knowledge and to negate good faith when intent is the gravamen of the crime Evidence III-Character Evidence Evidence - F(1)(a) p. 33 ,

What is Motive (in regards to relevant misconduct)

The commission of a prior crime may be evidence of a motive to commit the crime for which the defendant is accused. Evidence III-Character Evidence Evidence - F(1)(a) p. 33 ,

Examples of Relevant Misconduct

Motive, Intent, Absence of mistake or accident, identity, common plan or scheme, and similar acts or related misconduct may be used to prove opportunity, knowledge, or any relevant fact other than the accused’s general bad character or criminal disposition Evidence III-Character Evidence Evidence - F(1)(a) p. 33 ,

When is evidence of a defendant's prior act of sexual assault or child molestation admissible?

Where the defendant is accused of committing an act of sexual assault or child molestation, in both civil and criminal cases Evidence III-Character Evidence Evidence > Specific Acts of Misconduct Generally Inadmissible (III.F.2) ,

When is independently relevant uncharged misconduct by the defendant admissible without a preliminary ruling?

Under Rule 404(b) there must be (i) sufficient evidence to support a jury finding that the defendant committed the prior act; and (ii) its probative value on the issue of motive, intent, identity, etc. is not substantially outweighed by unfair prejudice Evidence III-Character Evidence Evidence > Specific Acts of Misconduct Generally Inadmissible (III.F.1.b) ,

What are other examples of specific acts of misconduct that are permissible character evidence?

Similar acts or related misconduct may be used to prove opportunity, knowledge, or any relevant fact other than the accused's bad character or criminal disposition. Evidence III-Character Evidence Evidence > Specific Acts of Misconduct Generally Inadmissible (III.F.1.a.6) ,

When is the common schemes exception permissible character evidence?

When the evidence is necessary to complete the narrative of the charged crime or to demonstrate the existence of an ongoing scheme where one crime was committed in preparation for the commission of the charged crime. Evidence III-Character Evidence Evidence > Specific Acts of Misconduct Generally Inadmissible (III.F.1.a.5) ,