Exclusion of Character and Prior Conduct Evidence (Step 2.B) - General Principles

Question 1

FRE 404(a)(1)

Character Evidence

Prohibited Uses

Answer 1

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait

Question 2

FRE 404(a)(2)

Character Evidence

Exception for a Defendant or Victim in a Criminal Case

Answer 2

The following exceptions apply in a criminal case:

1. A defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it
2. Subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s personal trait, and if the evidence is admitted, the prosecutor may
   
   1. Offer evidence to rebut it and
   2. Offer evidence of the defendant’s same trait; and
3. In a homicide case, the prosecutor may offer evidence of an alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor

Question 3

FRE 404(a)(3)

Character Evidence

Exception for a Witness

Answer 3

Evidence of a witness’s character may be admitted under Rules 607, 608 and 609

Question 4

FRE 404(b)(1)

Crimes, Wrongs or Other Acts

Prohibited Uses

Answer 4

Evidence of a crime, wrong or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character.

Question 5

FRE 404(b)(2)

Crimes, Wrongs or Other Acts

Notice in a Criminal Case

Answer 5

This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a criminal defendant, the prosecutor must

1. Provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial and
2. Do so before trial – or during a trial if the court, for good reason, excuses lack of pre-trial notice

Question 6

Pertinent Trait

Answer 6

A trait that is relevant to the case

Question 7

Policy Behind 404(a)(1)

Answer 7

The jury might overvalue this information, especially because we judge people based on past behavior every day. We want the jury to focus on the events in the case

Question 8

FRE 405(a)

Methods of Proving Character

Answer 8

When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of opinion. On cross-examination of a character witness, the court may allow an inquiry into relative specific instances of a person’s conduct

Question 9

FRE 405(b)

Methods of Proving Character

Essential Element

Answer 9

When a person’s character or character trait is an essential element of a charge, claim or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct

Question 10

Common Law v. FRE 405

Answer 10

Under the common law you could only use reputation evidence

Question 11

Reputation Question

Answer 11

Have you heard…?

Question 12

Opinion Question

Answer 12

Did you know…?

Question 13

Direct Use of Character Evidence

Answer 13

Character evidence is typically used in three types of civil cases:

• Family law – fitness to be a parent
• Defamation – truth as an affirmative defense
• Negligent entrustment – improper hiring

and in entrapment cases in criminal law. Other times where it may be used include civil commitment proceedings, duress defense (showing the character of the defendant) and sentencing proceedings.

The FRE do not apply in sentencing proceedings

Question 14

Impeachment Use of Character Evidence

Answer 14

• Any witness can be impeached (and then rehabilitated) on the person’s character for truthfulness or lack thereof. These character traits can be established by reputation and opinion testimony and, in limited circumstances (through the use of convictions), by evidence of specific conduct. FRE 404(a)(3), 607, 608 and 609
• If a witness provides character testimony about another person, the credibility of the witness can also be impeached by inquiry into the witness’s knowledge of specific conduct by the person about whose character the witness testified. 405(a)

Question 15

Methods of Impeachment

Answer 15

• Whether a witness is truthful
• Whether a witness is bias
• Whether a witness has a sensory defect
• Specific contradiction – proving the opposite of what the witness said
• Prior inconsistent statement

Question 16

Non-Propensity Circumstantial Uses of Character Evidence

FRE 404(b)(2)

MIMIC KOP

Answer 16

• Motive
• Intent
• Mistake (absence of)
• Identity
• Common plan or scheme
• Knowledge
• Opportunity
• Preparation

Question 17

Huddleston v. United States

1988

Facts and District Court’s Ruling

Answer 17

• The defendant was charged with one count selling stolen goods in interstate commerce and one count possessing stolen property in interstate commerce. (video tapes)
• The government wanted to enter evidence of the defendant’s past activities selling stolen TVs and appliances to show that in each instance the defendant was aware that the merchandise was stolen
• The District Court allowed it because the evidence was relevant to whether the defendant was aware the goods were stolen

Question 18

Huddleston v. United States

1988

Issue and Defendant’s Arguments

Answer 18

• The issue was whether the court must make a preliminary finding before evidence is admitted for “similar acts and other 404(b) evidence.”
• The defendant said the District Court erred in admitting the evidence because there was no evidence that the TVs and appliances stolen and there was a large chance that the evidence would be overly prejudicial
• The defendant also said the court should have reviewed the evidence under 104(a) before admitting it

Question 19

Huddleston v. United States

1988

SCOTUS’s Ruling

Answer 19

SCOTUS said the District Court did not err. Nothing in the Rule 404(b), its legislative history, or Congress indicated that 404(b) evidence needs a preliminary ruling. The defendant is protected against undue prejudice by

• 404(b) – evidence must be presented for a proper purpose
• 402 – evidence must be relevant (104(b))
• 403 – probative worth v. undue prejudice
• 105 – limiting instruction