Impeachment and Character Evidence

Question 1

What is propensity evidence?

Answer 1

Evidence of a general character trait offered to prove conduct in accordance therewith.

Question 2

What distinguishes habit/routine practice evidence from character evidence?

Answer 2

Habit evidence is evidence of the frequency of conduct under a particular set of circumstances, and is admissible to prove defendant acted in accordance therewith on a particular occasion.

Question 3

When can a defendant in a criminal case offer evidence of their own character, and in what form?

Answer 3

Defendant may offer reputation/opinion evidence of a trait pertinent to the crime charged.

Question 4

When can a prosecutor in a criminal case offer evidence of the defendant’s character, and in what form?

Answer 4

When the defendant has offered reputation/opinion evidence of their own pertinent character trait, the prosecution may c/e D character witness based on specific acts of D probative of that trait or offer its own reputation/opinion evidence as to D’s bad character for the pertinent trait.

Question 5

When may evidence of past sexual assault or child molestation be admissible against a defendant in a civil/criminal case?

Answer 5

When the defendant is accused of sexual assault or child molestation, and the proponent gives the defendant 15 day notice of their intent to use the evidence.

Question 6

When may evidence of a sexual assault victim’s sexual behavior/sexual predisposition be offered?

Answer 6

1) In criminal cases, specific instances of past sexual conduct may be used to prove the source of physical evidence or consent (based on specific instances of past sexual conduct with the defendant).

2) In civil cases, if the evidence’s probative value substantially outweighs the danger of prejudice to either party or the danger of harm to the victim.

Question 7

Who can impeach a witness?

Answer 7

Any party.

Question 8

What is the general rule regarding impeachment through character for untruthfulness?

Answer 8

Reputation/opinion evidence as to a witness’ character for untruthfulness can be offered to impeach the witness.

Question 9

What is the general rule regarding impeachment through a criminal conviction?

Answer 9

Evidence of a prior felony conviction or conviction for a crime requiring an act of dishonesty or false statement admissible to impeach a witness.

Question 10

When is evidence of a conviction NOT admissible for impeachment?

Answer 10

1) When the witness was granted pardon based on innocence or rehabilitation (and has not committed another crime)

2) When it was a juvenile adjudication, unless the conviction is not being used to impeach the def. in a criminal case and it is really needed.

3) When the conviction or release from confinement (whichever is later) occurred more than 10 years ago.

Question 11

When may a court exercise its discretion to admit evidence of a conviction or release from confinement that took place over 10 years ago?

Answer 11

When the probative value of the conviction substantially outweighs the risk of unfair prejudice, and the proponent of the evidence has given their opponent reasonable written notice of their intent to introduce the conviction.

Question 12

When may a court exercise its discretion to exclude evidence of the conviction of a criminal defendant?

Answer 12

When the prosecution has not shown that the probative value of the conviction outweighs the risk of unfair prejudice.

Question 13

When may a court exercise its discretion to exclude evidence of the conviction of a witness other than a criminal defendant?

Answer 13

When the probative value of the conviction is substantially outweighed by the risk of unfair prejudice

Question 14

When is extrinsic evidence of a prior inconsistent statement admissible?

Answer 14

When prior inconsistent statement is not related to a collateral matter and a proper foundation is laid:

1) The witness has the opportunity to explain the inconsistency
2) The opposing party has the opportunity to examine the witness.

(Not required where party is impeaching HS declarant or impeaching based on admission of the opposing party, or if “justice so requires)

Question 15

What are the permissible methods of impeachment?

Answer 15

Impeachment based on prior inconsistent statement, bias, sensory deficiencies, contradictory facts, or character for untruthfulness (reputation/opinion, convictions, prior bad acts)

Question 16

When is extrinsic evidence admissible for impeachment based on contradictory facts?

Answer 16

When the impeachment is not related to a matter collateral to an issue in the case or to the witness’ credibility

Question 17

What are the common non-propensity purposes for which evidence of prior bad acts is offered? (MIMIC)

Answer 17

Motive, Intent (Knowledge), Mistake/absence of mistake, Identity, Common scheme/plan

Question 18

What are the rules governing the use of evidence of specific acts for a purpose other than propensity?

Answer 18

There must be evidence sufficient to support a jury finding that D committed prior bad act.

If proponent is prosecutor in a criminal case, they must give written notice prior to trial of intent to use evidence and the non-propensity purpose.

Question 19

When can a defendant in a criminal case offer evidence of a victim’s character, and in what form?

Answer 19

Defendant may offer reputation/opinion evidence of a pertinent trait of the victim when it is relevant to the defendant’s claim or defense (D claims self-defense).

Question 20

How may a prosecutor respond to a defendant introducing evidence of a victim’s character?

Answer 20

By offering reputation/opinion evidence of the victim’s good character for the pertinent trait AND the defendant’s bad character for the pertinent trait.

In a homicide case where D claims self defense, prosecutor may respond to non-character or character evidence of the victim’s aggression with evidence of victim’s good character.

Question 21

What are examples of civil actions in which evidence of the character of a party is admissible based on an essential element of the claim?

Answer 21

Defamation (P character), fraud (D character), negligent entrustment/hiring (hired party), child custody (parents’ character)

Question 22

How may character evidence be presented in a civil case in which the character of a party is an essential element of the claim?

Answer 22

By specific acts OR reputation/opinion testimony.

Question 23

What is the rule regarding impeachment of a witness based on prior bad acts?

Answer 23

A party may impeach the credibility of a witness by cross examining the witness about prior bad acts that are probative of truthfulness, but can NEVER offer extrinsic evidence of prior bad acts.

Party needs GF basis to believe witness committed prior bad act.