Pg 14

Question 1

What is the first thing to consider after relevance for a character evidence question?

Answer 1

Ask if it isn’t character evidence at all, but it’s actually about the event in question

Question 2

If defendant hit plaintiff in a car, and plaintiff calls a police officer as a witness to say he tailed the defendant before the accident, and the defendant was driving erratically and appeared drunk, is that a character evidence question?

Answer 2

No, it is actually circumstantial evidence about the event in question, which is totally allowed. Don’t get tricked into thinking that 404 bans something when it is not character evidence

Question 3

What are the initial questions to ask when you think you have a character evidence question?

Answer 3

• is the evidence about the event in question?
  – Is there a non-propensity purpose under mimic?
  – Do any exceptions apply?

Question 4

If evidence is about the event in question, as opposed to a prior event or the defendant’s reputation or opinion, can you make a character evidence objection?

Answer 4

No, you can only make a character evidence objection if it is about a past event/reputation/opinion

Question 5

Propensity essentially suggests what?

Answer 5

That the defendant is the type of person that would commit the act, and likely did commit it, because he has a propensity or a tendency for that trait

Question 6

Is it permissible to say that defendant stole before, so he likely stole now?

Answer 6

No, because that is a propensity inference that is banned under 404

Question 7

When should a limiting instruction being used in the context of character evidence?

Answer 7

Any time evidence of a crime or wrong is admitted under 404, the jury should be given a limiting instruction not to consider the evidence as going to the character of the defendant, but just as going to the particular purpose it is offered for

Question 8

What is an inferential chain?

Answer 8

The thought process that takes you from evidence that is being offered to the material proposition it is being offered for

Question 9

If there is evidence that defendant stole a stereo in the past, how does an inferential chain work?

Answer 9

People naturally infer that because of that he has a propensity to steal, so they are a little bit more willing to conclude that he stole for the crime he is being charged of. This involves the intermediate connecting step between the evidence and the conclusion, which is a propensity inference

Question 10

What are the three major exceptions in a CRIMINAL case to the 404 ban on character evidence?

Answer 10

1. the mercy rule: criminal defendant can offer evidence of his pertinent good trait, and that allows the prosecution to offer evidence to rebut it
2. criminal defendant can offer evidence of victim’s pertinent bad trait, and that allows the prosecution to offer evidence to rebut it as well as to say that defendant has the same trait
3. homicide quirk: for homicides, the prosecution can offer evidence of victim’s trait of peacefulness to rebut evidence that victim was the first aggressor

Question 11

What is the mercy rule?

Answer 11

An exception in a criminal case to the ban on character evidence that allows a criminal D to offer evidence of his pertinent good trait, and then the prosecution can offer evidence to rebut that. This shows mercy to a criminal D by allowing him to do something no one else gets to do - offer evidence to suggest he isn’t the type of guy that would commit the crime, so he didn’t commit it.

Question 12

Would a criminal defendant be allowed to say that despite the evidence that was introduced, there is a witness that will say that he has known the defendant for a long time, and the defendant is honest and law-abiding and would never commit this crime?

Answer 12

Ordinarily 404 would ban that, but the mercy rule exception allows the defendant to introduce evidence of a pertinent good trait

Question 13

Under the mercy rule, the criminal defendant is limited to testifying as what to things?

Answer 13

Only reputation or opinion, he cannot testify about specific instances

Question 14

What is the reason under the mercy rule that a defendant can only testify about reputation or opinion, and not specific instances?

Answer 14

Because of the time and distraction it would take. It is quick to say you know the defendant and say what you think about him, but if you name every time he acted honestly, that would take a lot of time and confuse the jury

Question 15

The other side of the mercy rule that allows the prosecution to offer evidence to rebut the good trait that the defendant has claimed to have, can only be inquired about based on what one thing?

Answer 15

Only specific instances, not reputation or opinion

Question 16

What is the reason that the prosecution is allowed to bring up specific instances to rebut a defendant’s purportedly good trait under the mercy rule?

Answer 16

This is meant to test or undermine the reputation or opinion testimony that the defendant gave, not to prove the specific instance happened

Question 17

If a defendant in a criminal case introduced opinion evidence that he was honest, would the prosecution be allowed to say that he cheated on his SATs?

Answer 17

Yes because that would be introducing specific instance evidence and would be helpful because if the witness knew about the SAT thing and still thought he was honest, the jury would doubt the weight of the witness’ opinion. If the witness didn’t know, then his opinion is no good because he didn’t know about the bad things the defendant did

Question 18

In order for an attorney to ask about a specific instance as a response to the mercy rule, he must have what?

Answer 18

Good faith basis to believe that the event happened

Question 19

Once a prosecutor cross-examines a witness that testified to a good trait of a criminal defendant under the mercy rule, if the cross examiner doesn’t believe the witness, what can he do?

Answer 19

He must take the witness at his answer and he cannot prove it up extrinsically by calling other witnesses or introducing documents

Question 20

If a defendant has introduced a good pertinent trait in a criminal case under the mercy rule, and the prosecution wishes to rebut this by calling their own witness to testify about the defendant’s bad character, in what form are they permitted to do that?

Answer 20

Only reputation or opinion about the D’s bad character on direct, then the defendant’s attorney can cross examine that witness about specific instances

Question 21

If a defendant wishes to offer evidence of a good trait in a criminal case for the mercy rule, what must that trait be?

Answer 21

It must be a pertinent trait. Ie: for an assault, the pertinent trait would be violence, so the defendant could not call a witness to testify that he is honest

Question 22

Who can avail themselves of the mercy rule?

Answer 22

Only a criminal defendant

Question 23

When dealing with the mercy rule, what does it mean to say that the forms of evidence are parallel?

Answer 23

The defendant’s first witness can only talk about reputation or opinion, and the same is true for a rebuttal witness that the prosecution brings in. But both sides can cross examine the other side’s first witnesses about specific instances

Question 24

What is the change in the way that California deals with the mercy rule as opposed to the FRE?

Answer 24

California allows specific instances to be asked about on both direct and cross

Question 25

What is involved in the exception for a criminal case to the ban on character evidence that allows a criminal defendant to offer evidence of a victim’s pertinent bad trait?

Answer 25

If this is admitted, the prosecution can then offer evidence to rebut it, and they can offer evidence that the defendant has the same trait

Question 26

A victim’s character for violence can be offered in a murder trial when the defendant claims he acted in self-defense. But that opens the door to what?

Answer 26

The prosecution responding with evidence of the victim’s good character as well as showing the defendant’s bad character for the same trait. This is tit for tat

Question 27

If a defendant said that the victim was violent, what can the prosecution say under an exception in a criminal case to the ban on character evidence?

Answer 27

They can say that the defendant was violent too

Question 28

Under the exception in a criminal case to the ban on character evidence that allows a criminal defendant to offer evidence of a victim’s pertinent bad trait, what form is the evidence allowed to be in?

Answer 28

• The defendant can only testify about the victim’s character as reputation or opinion on direct.
• The prosecution can then cross examine him about specific instances to test or undermine that testimony. But the prosecution has to take the witness at his answer and cannot prove anything up extrinsically.
• when the prosecution calls a rebuttal witness to rehabilitate the victim’s character or to attack the defendant’s character, that rebuttal is limited to reputation or opinion on direct, but specific instances can be asked about on cross

Question 29

How does California differ from the FRE exception in a criminal case to the ban on character evidence that allows a criminal defendant to offer evidence of the victim’s pertinent bad trait?

Answer 29

The only time that the prosecution can attack the defendant’s character is if the trait at issue is violence

Question 30

What is involved in the homicide quirk that is an exception in criminal cases to the ban on character evidence?

Answer 30

The prosecution can offer evidence of a victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor. But this is limited to opinion or reputation

Question 31

What is the reasoning behind the homicide quirk?

Answer 31

The victim is dead, so he can’t rebut the defendant’s version of events. This allows the prosecution to introduce character evidence that it wouldn’t be consistent with the victim’s character to have been the aggressor

Question 32

What is the most important thing to remember for the homicide quirk to apply?

Answer 32

It must involve a homicide. If the victim is not dead, this does not apply. So do not get tricked by an assault. Also you can only talk about the victim’s peacefulness, not about the defendant’s violence. AND - this only applies to criminal cases, not civil

Question 33

For all of the exceptions in a criminal case to the ban on character evidence, what is the rule for the method that you’re allowed to employ to bring in evidence?

Answer 33

• direct, you can only talk about reputation or opinion.
  – For rebuttal you can only talk about reputation or opinion
  – for cross examination you can ask about specific instances

Question 34

How is California different when it comes to the homicide quirk?

Answer 34

California doesn’t have a homicide quirk