Relevance: The Special Problem of Character Evidence

Question 1

What is habit evidence?

When is habit evidence admissible?

What is the rule in CA?

Answer 1

“habit evidence” = describes a person’s regular response to a SPECIFIC set of circumstances

Habit evidence –> admissible to show that a person acted in accordance with the habit on a particular occasion

Rule in CA –> SAME

Question 2

What are examples of habit versus character evidence?

Answer 2

Habit Evidence –>

1. Sally always takes the stairs two at a time
2. Bart stops at Charlie’s tavern every night after work and has exactly 4 beers
3. Jeff never slows down for the yield sign at the end of the street
4. Lara checks the brakes on her car every Sunday after charge

Character:

1. Sally is always in a hurry
2. Bart is a drunk
3. Jeff is a careless driver
4. Lara is very conscientious about her car

Question 3

Is evidence of a particular business routine admissible?

Answer 3

Yes.

Evidence of particular business routine is ADMISSIBLE to show that a particular event occurred

Question 4

What is the rule w regards to admissibility of industry custom as evidence of a standard of care?

Answer 4

Evidence of industry custom IS ADMISSIBLE to show adherence or deviance from industry wide standard of care

HOWEVER –> it is not dispositive
REASONING –> an entire industry may be negligent

Question 5

What is the rule w regards to admissibility of character evidence in a civil case?

Answer 5

General rule –> Character evidence is generally NOT admissible by EITHER PARTY in a civil case to prove conduct in conformity with character

EXCEPTION –>

1. if character is directly at issue (for example, defamation)
2. if for some other reason (MIMIC)

EXAMPLES:

• P may NOT introduce evidence that D is careless driver
• D may NOT introduce evidence that D is a cautious driver

Question 6

What is the rule w regards to admissibility of character evidence in a criminal case, with regards to character of the accused?

What is CA rule?

Answer 6

With regards to character of the accused –>
1. Prosecution cannot initiate evidence of bad character of D merely to show he is more likely to commit crime.
HOWEVER –> may be admitted if character is directly at issue (EXAMPLE –> entrapment)

2. HOWEVER —> accused CAN show evidence of her good character to show her innocence of the accused crime by:
   (i) reputation testimony; and
   (ii) opinion testimony
3. Once accused opens the door
   (i) cross-examining character witness re: basis for his testimony, including whether he knows of or has heard of SPECIFIC INSTANCES of D’s misconduct
   - note: P may ask about any misconduct of D, including prior arrests (but not prior arrests of witness). It’s only to prove knowledge of W, not character of D.
   - note: HOWEVER –> p may not bring in extrinsic evidence
   (ii) calling his OWN character witnesses to testify as
   (a) to D’s bad reputation; OR
   (b) witness’s opinion of D’s character

NOTE –> D does not open the door merely by taking the stand. He only opens the door if he calls character witnesses

SEE ALSO –> exception in criminal AND civil sexual assault/child molestation cases

SEE also –> criminal cases where evidence of v’s character is offered by the D, to show D has same bad character trait

CA RULE –> same

Question 7

What is the rule w regards to admissibility of character evidence in a criminal case, with regards to character of the victim?

What is CA limitation on the above?
What is CA special rule w regards to type of evidence allowed on rebuttal?

What is the special rule for homicide cases?

What is CA rule for homicide cases?

Answer 7

General rule –> Inadmissible, unless D opens the door by offering evidence of V’s bad character (but not in sexual assault cases)

1. Except for sexual assault cases, D may introduce REPUTATION and OPINION evidence of a bad character trait in the alleged victim when it is relevant to show D’s innocence
2. Once D opens door, P may counter with REPUTATION or OPINION evidence of:
   (i). victim’s GOOD character for same trait
   (ii). D’s BAD character for same trait
   NOTE –> The above are available on DIRECT or CROSS. Specific INSTANCES admissible only on cross, but only to prove witness’s lack of knowledge
   NOTE: CA limitation –> only allows such evidence on the trait of VIOLENCE
   NOTE: SPECIAL CA RULE –> Once D opens door by offering evidence of V’s bad character, OT, RT, and SIC are admissible on both direct and cross examination
   NOT: CA PROP 8 –> Prop 8 does not apply to evidence of V’s character to prove conduct

FOR HOMICIDE CASE where D pleads Self-defense –> If D offers evidence of ANY KIND to show self-defense, then door is opened for P to offer evidence of victim’s trait for peacefulness

• OT and RT are available on DIRECT and CROSS
• Specific Instances are available on cross, but only to prove character witness’s lack of knowledge

CA RULE RE: HOMICIDE CASES, SELF-DEFENSE, and V’s character for peacefulness–> rule does not exist. There is no CA counterpart. Also, rem that prop 8 does NOT apply to evidence of V’s character to prove conduct

Question 8

What is the general rule w regards to evidence of a sexual assault victim’s past behavior?

What is the CA rule for CRIMINAL cases in CA? (figure out if it’s same for civil)

Answer 8

General Rule –> in any CIVIL or CRIMINAL case involving sexual misconduct, evidence to prove sexual behavior of victim is inadmissible

CRIMINAL EXCEPTION –>

1. SPECIFIC INSTANCES of V’s sexual behavior ARE admissible to show that someone other than D is the source of semen, injury, or other physical evidence
2. specific instances of sexual behavior between v and accused are admissible:
   (i) by prosecution for any reason;
   (ii) by D to show consent

CIVIL EXCEPTION –>

1. Evidence of V’s sexual behavior is admissible IF:
   (i) not excluded by any other rule; AND
   (ii) probative value SUBSTANTIALLY OUTWEIGHS danger of harm to victim or prejudice to any party
2. Evidence of V’s reputation is admissible ONLY if it has been placed in controversy by victim

CA RULE (in criminal or all cases?)  --> 
1. D cannot offer any evidence of victim's prior sexual conduct or manner of dress to prove V's behavior UNLESS sexual conduct was with D.
2. If Prosecution INITIATES an inquiry into V's prior sexual conduct, D may cross-examine and rebut
NOTE --> prop 8 does not apply to evidence barred by CA's rape shield statute

Question 9

What is the general rule with regards to specific acts of misconduct?

What is CA rule?

Answer 9

Evidence of a person’s other crimes or misconduct –> INADMISSIBLE if offered solely to establish a criminal disposition or bad character

ARE admissible for some other purpose, including (MIMIC):

1. Motive
2. Intent
3. Mistake (absence of)
4. Identity
5. Common Plan or Scheme

NOTE –>

1. there must be sufficient evidence for jury to find the prior act had been committed
2. still subject to balancing

CA rule –> Same

Question 10

What is the rule w regards to evidence of D’s prior sexual assault or child molestation?

What is the CA rule?

What is special CA rule with no FRE counterpart?

Answer 10

Evidence of D’s prior sexual assaults or child molestation IS admissible in a CRIMINAL or CIVIL case where D is accused of committing an act of sexual assault or child molestation

Party intending to offer must disclose it within 15 days before trial (or later, with good cause)

CA Rule –>

1. Evidence of D’s prior sexual assaults or child molestation IS admissible in a CRIMINAL case where D is accused of committing an act of sexual assault or child molestation
2. HOWEVER —> not in a CIVIL case

EXTRA CA Rule (w/ no FRE counterpart) –>
In CRIMINAL DOMESTIC VIOLENCE and ELDER ABUSE cases, Pros can offer evidence that D committed other acts of DV or EA