Rule 404(a) Proof of Conduct by Propensity Flashcards
+ Pranksters in various part of the world periodically steal garden gnomes from private gardens. Claudia is the victim of one of these thefts. Her treasured gnome, Sleepy, disappeared from her garden last year. Claudia suspected that her neighbor, Sam, took Sleepy and she sued him to recover damages (a trespass to chattel claim). Sleepy was never recovered, and no one witnessed the gnome’s disappearance, so all of Claudia’s evidence against Sam is circumstantial.
+ Can Claudia offer evidence that Sam was caught shoplifting headphones from a local target store?
+ What if he was convicted for shoplifting?
+ Evidence from neighbor that, in his opinion, “Sam will steal anything he can get his hands on?”
+ What if Sam takes the stand?
None of this evidence is admissible in Claudia’s case-in-chief. Rule 404(a)(1) bars “[e]vidence of a person’s character or character trait… to prove that on a particular occasion the person acted in accordance with the character or trait.” Claudia wants to offer the above evidence for exactly this type of prohibited reason. She wants to argue that, because Sam has stolen things before, he is the type of person who steals, and, therefore, is likely to have stolen her gnome, Sleepy.
If Sam takes the stand, he opens himself up to attacks on his character for untruthfulness. Shoplifting is not an act of untruthfulness, so evidence of this conduct, whether he was convicted or not, is not admissible.
Petty theft is not a crime of dishonesty and is not evidence of untruthfulness.
If Sam takes the stand if he gets on the stand, evidence of the shoplifting misdemeanor cannot be used (not a crime of lying)
- This is not dishonesty, not a qualifying conviction
- This is not a crime of dishonesty
+ In defense, Sam asks his best friend to testify that Sam has an “honest, law-abiding character.” Is this admissible?
Yes. The defendant can initiate character evidence under Rule 404(a)(2), and the best friend’s testimony is pertinent to the crime charged.
+ Can the prosecutor offer evidence during the case-in-chief that Sam has a thieving character?
No, the prosecutor can only respond to character evidence offered by the defendant (or, in homicide cases, to other evidence that the victim is the aggressor.) Rule 404(a)(1) prevents the prosecutor from arguing that Sam has a thieving character, just as the rule barred Claudia from argument in the civil case.
+ In response, the prosecutor offers character evidence that (1) San has a dishonest, thieving character, and (2) Claudia is an honest person. Is this admissible?
- admissible, the prosecutor can rebut Sam’s character evidence with contrary evidence on the same trait.
- Not admissible. When a defendant offers evidence of his own character, that evidence does not open the door for the prosecutor to buttress the victim’s character. Nor can the prosecutor offer evidence about Claudia’s honesty under Rule 608. Even if Claudia has testified, the prosecutor cannot bolster her truthfulness until the defendant attacks that character. Whether we treat Claudia as the victim or as a witness, the prosecutor cannot offer evidence about her character until the defendant does.
Rodney Rogers was living in a house that an acquaintance was building. According to Rogers, the acquaintance promised to sell him the house when it was done, but reneged on the deal. Rogers decided to get even. He took his power saw and made a horizontal cut around the entire outside wall of the house at chest level. In other words, he sliced the house in half with the top resting on the bottom only through gravity. The State charged Rogers with vandalism and aggravated menacing.
At trial, Rogers calls a character witness who testifies that he has known Rogers well for 15 years and, in his opinion, Rogers is “law abiding.” On cross-examination, the prosecutor asks the character witness: “Are you aware that Rogers wrote a book on how to make explosives at home?” Is this question proper?
What if Rogers called a different neighbor to testify that, in her opinion, Rogers was “clumsy and scared of power equipment.” Is this proper character evidence?
Suppose Rogers presents a witness to attack the victim’s character. The witness testifies that the victim, “has a reputation, throughout the neighborhood, for reneging on promises.” Admissible?
What would be pertinent character traits for victim?
Could attorney for Rogers cross examine victim about prior instances of reneging on promises?
Answer:
Are you aware that Rogers wrote a book on how to make explosives at home? Proper question?
No. There’s nothing illegal about writing a book about explosives. It doesn’t relate to the opinion expressed by the witness and creates unfair prejudice.
Witness to testify that Rogers is clumsy and scared of power equipment? Proper character evidence?
It’s unusual character evidence, and the prosecutor might argue that clumsiness and fear of power equipment aren’t character traits. The defendant, however, could make plausible arguments that both of these characteristics should count as character traits.
The witness testifies the victim has “a reputation throughout the neighborhood for reneging on promises. Admissible?
No. The law doesn’t recognize vandalism as justification for reneging on promises, so it is not a pertinent trait to the charge of vandalism.
Zoe is on trial for shoplifting a digital camera from an electronics store. The prosecutor claims to have a security video that shows Zoe picking the camera off the shelf, concealing it under her clothing, and leaving the store without paying for it. Zoe claims that she was never in the store, and that the person caught on the security camera is someone else. The prosecutor wants to introduce evidence that last year Zoe stole a cell phone from a store by picking the phone off the shelf and hiding it underneath her clothes. Is this evidence admissible?
Xander is accused of stealing a digital camera by going to the video game section of the store, peeling off the computer price code from a $20 game, and gluing that tag to a $300 video camera box. When the clerk scanned the item, he failed to notice the discrepancy, and Xander was able to leave the store after paying only $20. The clerk has identified Xander as the shopper who presented the mis-tagged camera box. Xander claims that he was not the one who committed this crime, and that the store clerk misidentified him. The prosecutor wants to admit evidence that last year Xander stole a $150 cell phone by pasting a computer price code from a $10 cell phone holster onto the cell phone package and paying only $10 for the phone. Is this evidence admissible?
Answer:
#1: This evidence would be precluded under Rule 404. Not a very distinctive method of shoplifting. Low probative value to provide identity, and jury will likely use the evidence for forbidden propensity inferences.
#2: It’s arguable. Is this method of shoplifting more distinctive than the one above. Perhaps, but it also suggests knowledge to commit this crime as it is a technique he has practiced. Although the evidence causes some prejudice (jury may assume that he is the type of person who shoplifts), the probative value for proving identity and knowledge is sufficient.
