Short and Happy Guide Chapter 5 - Character Evidence

Question 1

The rules themselves do not provide a definition of what character evidence is. True or False.

Answer 1

True

Question 2

The 7th circuit has described it as evidence that refers to elements of one’s disposition, such as honesty, temperance, or peacefulness, which shows a propensity to act a certain way in a certain situation.

Answer 2

Character Evidence

Question 3

Evidence regarding someone’s general propensity traits or propensities, of a praiseworthy or blameworthy nature; evidence of a person’s moral standing in a community.

Answer 3

Character Evidence

Question 4

___________ _________ is often expressed in terms such as she’s a liar, he’s a thief, she’s always angry, he’s a killer, she’s forgetful, he’s violent, etc.

Answer 4

Character Evidence

Question 5

We care about character evidence because of the concern that evidence of a person’s character might be used to persuade a fact-finder that a person did something, or acted in some way, because of their “_________” alone.

Answer 5

character

Question 6

For example, suppose that Judy had been convicted of stealing diamonds. Currently, Judy is on trial for theft of diamonds. As a prosecutor, you would certainly want the jury to hear about the prior convictions, right? Sure! The thought being that if she committed four previous diamond thefts she, more likely than not, committed this one. A prosecutor would try to use those prior convictions to aid in obtaining this conviction. The rules of character evidence attempt to protect the defendant in circumstances such as these. After all, those prior convictions do not mean that Judy committed this particular crime, do they? !

Answer 6

!!

Question 7

Character Evidence; Other Crimes, Wrongs or Acts

Answer 7

Rule 404

Question 8

Methods of Proving Character

Answer 8

Rule 405

Question 9

Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition.

Answer 9

Rule 412

Question 10

Similar Crimes in Sexual- Assault Cases

Answer 10

Rule 413

Question 11

Similar Cases in Child-Molestation Cases

Answer 11

Rule 414

Question 12

Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

Answer 12

Rule 415

Question 13

Who May Impeach

Answer 13

Rule 607

Question 14

A witness’s Character for Truthfulness or Untruthfulness.

Answer 14

Rule 608

Question 15

Impeachment by Evidence of a Criminal Conviction

Answer 15

Rule 609

Question 16

Character Evidence is impacted by three different things:
1. ?
2.
3.

Answer 16

1. The purpose for which the character evidence is offered.

Question 17

Character Evidence is impacted by three different things:
1.
2. ?
3.

Answer 17

2. the method used to prove the character evidence; and

Question 18

Character Evidence is impacted by three different things:
1.
2.
3. ?

Answer 18

3. Whether the case is a criminal case or a civil case

Question 19

Character Evidence is impacted by three different things:
1.
2.
3.

Answer 19

1. The purpose for which the character evidence is offered;
2. the method used to prove the character evidence; and
3. whether the case is a criminal case or a civil case

Question 20

Rule ________ sets out the initial prohibition: “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. That is the starting point.

Answer 20

Rule 404(a)(1)

Question 21

Start Here.
Does the evidence in question relate to a person’s character or character trait? FRE 404(a)(1).

If yes, Is the evidence being offered to prove that on a particular occasion, the person acted in accordance with the character or character trait? FRE 404(a)(1).

If yes, Is the evidence that of a witness’s character? (that is, someone actually testifying at trial) FRE 404(a)(3).

If no, is this a criminal case?

If no, if you have traveled this far through the chart, then no exceptions apply and the character evidence, or character trait, will not be admitted. !

Answer 21

!1

Question 22

Does the evidence in question relate to a person’s character or character trait? FRE 404(a)(1).

If no,

Answer 22

Rule 404 does not apply.

Question 23

Does the evidence in question relate to a person’s character or character trait? FRE 404(a)(1).

If yes, Is the evidence being offered to prove that on a particular occasion, the person acted in accordance with the character or character trait? FRE 404(a)(1).

If no,

Answer 23

Rule 404 does not apply.

Question 24

Does the evidence in question relate to a person’s character or character trait? FRE 404(a)(1).

If yes, Is the evidence being offered to prove that on a particular occasion, the person acted in accordance with the character or character trait? FRE 404(a)(1).

If yes, is the evidence that of a witness’s character? (That is, someone actually testifying at the trial) FRE 404(a)(3).

If yes, Potential Exceptions include rules:
1.
2.
3.
FRE 404(a)(3)

Answer 24

1. 607
2. 608, and
3. 609

govern the admission of evidence.

Question 25

Does the evidence in question relate to a person’s character or character trait? FRE 404(a)(1).

If yes, Is the evidence being offered to prove that on a particular occasion, the person acted in accordance with the character or character trait? FRE 404(a)(1).

If yes, is the evidence that of a witness’s character? (That is, someone actually testifying at the trial) FRE 404(a)(3).

If no, is this a criminal case? FRE 404(a)(2)

If yes, In ________ _______, certain exceptions apply to Defendants and Victims. Rule 404(a)(2) sets out those exceptions.

Answer 25

criminal cases

Question 26

At this point, you have determined whether character or trait evidence will, or will not, be admitted. If it is inadmissible, your analysis is complete. If it is admissible, then you must turn to Rule _____. Rule ____ sets forth the methods by which one may prove character evidence. There is never a reason to look at Rule _____, unless you have determined that character evidence is admissible under 404.

Answer 26

Rule 405

405

405

Question 27

The first exceptions listed under the Rule 404(a)(2)(A), (B), and (C) apply potentially to defendants and victims in _________ _________ only. Do not forget that you will not be looking at these exceptions unless you are attempting to admit evidence under 404(a)(1).

Answer 27

Criminal Cases

Question 28

Rule 404(a)(2)(A)

Answer 28

A defendant’s Character in a Criminal Case

Question 29

A ________ may offer evidence of her pertinent character trait. Rule 404(a)(2)(A).

Answer 29

defendant

Question 30

If you consider policy behind the prohibition (consider the story of the diamond thief above), then it makes sense that a criminal defendant should be permitted to offer evidence of her own ___________. Rule 404(a)(2)(A).

Answer 30

character

Question 31

If the diamond thief thinks evidence of a particular character trait will help her, she can take the risk and have the evidence admitted. What rule?

Once admitted – the prosecutor may offer evidence to _______ it.

Answer 31

Rule 404(a)(2)(A)

rebut

Question 32

Rule 404(a)(2)(B)

Answer 32

A Victim’s Character Offered by a Defendant in a Criminal Case.

Question 33

__________ may offer evidence of the ________ pertinent character trait. However, the admission of this evidence is subject to the limitations in Rule 412.

Answer 33

defendants

victims

Question 34

Just as with the defendant’s character, once admitted – the prosecution may offer evidence to rebut it; and, the prosecution may offer evidence of the __________ same character trait. Rule 404(a)(2)(B).

Answer 34

defendants

Question 35

Rule 404(a)(2)(C)

Answer 35

A Victim’s Trait of Peacefulness in a Homicide Case

Question 36

In ______ cases (and ONLY in ______ cases - don’t forget this), the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor. Rule 404(1)(2)(C).

Answer 36

homicide

homicide

Question 37

Example: Doug is on trial for the murder of Val. Doug’s defense is that he was attacked by Val, and so he shot Val in self-defense. The prosecutor may put on evidence that Val was known throughout the community as a mild-mannered, peaceful individual that never raised his hand or his voice. What does this refer to?

Answer 37

Rule 404(a)(2)(C). A Victim’s Trait of Peacefulness in a Homicide Case.

Question 38

Rule _______ does not govern when character evidence is admissible, only how in what form the evidence will be admitted.

Answer 38

405(a)

Question 39

Methods of Proving Character:
1.
2.

Answer 39

1. By Reputation or Opinion
2. By Specific Instances of Conduct

Question 40

Under Rule 405(a), Character Evidence may be proved by testimony about:
1.
2.

The rule only permits ________ or _______ testimony, not specific examples.

Answer 40

1. the person’s reputation or,
2. an opinion about the person’s character

reputation or opinion

Question 41

Rule 405(a) only permits reputation or opinion testimony, not specific examples. However, if that opinion or reputation testimony is admitted, then the court MAY permit questions about ________ ________ of relevant conduct.

Answer 41

specific instances

Question 42

Let’s say that character evidence is permitted as to John Doe. Wally the Witness testifies that, in his opinion, John is a dishonest person (opinion testimony). On cross-examination, Wally could be asked about the time that John found a wallet on the street with $500 in cash and turned it into the police station (a specific instance of conduct). !

Answer 42

!

Question 43

Rule _______ permits specific instances of a person’s conduct when a person’s character trait is an essential element of a charge, claim, or defense.

‘the relevant question under rule _____ should be: would proof, or failure of proof, of the character trait by itself actually satisfy an element of the charge, claim, or defense? if not, then character is not essential, and evidence should be limited to opinion or reputation.

Answer 43

405(b)

405

Question 44

The exceptions for witnesses permitted by rule _______ apply to both civil and criminal cases.

Answer 44

Rule 404(a)(3)

Question 45

The exceptions for witnesses permitted by Rule 404(a)(3) apply to both civil and criminal cases. Rules 404(a)(3) provides that evidence of a witness’s character may be admitted under Rules _____, _____, and _____.

Answer 45

607

608

609

Question 46

Who may Impeach a Witness. What rule?

Answer 46

609

Question 47

This rule permits _________ to impeach a witness even the party that called the witness. This was promulgated because, in the old days, the party who called a witness also vouched for them. This prevented a party from attacking his or her own witness. The problem with the old rule was that sometimes a party wanted to call a witness that was not aligned with the party; a bad guy so to speak. the old rule prevented that. Now, under rule 607, a party may call and impeach a bad guy.

Answer 47

anyone

Question 48

To be reviewing evidence under this rule, you have already determined that you are offering evidence which would be impermissible under 404(a)(1) and does not meet an exception under 404(a)(2). Rule 404(a)(3), however, sets forth exceptions for witnesses under rules 607, 608, and 609.

Rule 608 is divided into two areas:
1.
2.

Answer 48

1. reputation or opinion evidence and
2. specific instances of conduct

Question 49

Reputation or Opinion Evidence. What rule?

Answer 49

608(a)

Question 50

Rule 608(a) identifies, what, when and how it is permitted.

What:
1.
2.

Answer 50

1. The witness’s reputation for truthfulness
2. The witness’s reputation for untruthfulness

Question 51

Rule 608(a) identifies, what, when and how it is permitted.

When:
1.
2.

Answer 51

1. Evidence as to untruthfulness may be attacked at any time.
2. Evidence as to truthfulness may only be offered after then witness’s character for truthfulness has been attacked.

Question 52

Rule 608(a) identifies, what, when and how it is permitted.

How:
1.

Answer 52

1. Testimony about that witness’s reputation.

Question 53

Specific Instances of Conduct.

What rule?

Answer 53

Rule 608(b)

Question 54

Scenario: David was previously caught shoplifting but no criminal charges were brought. Suppose David is on the witness stand and the lawyer on then opposing side of the case wants to discredit David.

She (the lawyer) believes that if evidence of this shoplifting incident is revealed then the fact-finder is less likely to believe David’s testimony (challenge his truthfulness).

The first thing we have to determine is: who is asking the questions.

If the lawyer is asking questions on ______ ________ then questions as to the shoplifting incident are permitted.

But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for __________ or _________ of (1) the witness.. In this case, the rule permits the questions.

Answer 54

direct evidence

truthfulness or untruthfulness

Question 55

In examining evidence subject to Rule 608, you must determine the following:
1. ?
2.
3.
a.
b.

Answer 55

1. Is the evidence a criminal conviction under Rule 609

Question 56

In examining evidence subject to Rule 608, you must determine the following:
1.
2. ?
3.
a.
b.

Answer 56

2. Is the question on direct or cross-examination;

Question 57

In examining evidence subject to Rule 608, you must determine the following:
1.
2.
3. ?
a.
b.

Answer 57

3. Is the evidence regarding:

Question 58

In examining evidence subject to Rule 608, you must determine the following:
1.
2.
3. Is the evidence regarding:
a. ?
b.

Answer 58

1. the witness to whom the question is directed; or

Question 59

In examining evidence subject to Rule 608, you must determine the following:
1.
2.
3. Is the evidence regarding:
a.
b. ?

Answer 59

b. another witness whose character the witness being cross-examined has testified about.

Question 60

Rule 608 applies to all witnesses, whether they are the ________ or the ______.

Answer 60

defendant or victim

Question 61

Impeachment by Evidence of a Criminal Conviction
What rule?

Answer 61

Rule 609

Question 62

A criminal conviction when the crime in the convicting jurisdiction was punishable by _____ or _______ for more than one year. Note: The rule does not require that the person actually served for more than one year in prison - only that the punishment could have been for more than a year.FRE 609(a)(1).

Answer 62

death or imprisonment

Question 63

A criminal conviction when the crime in the convicting jurisdiction was punishable by death or imprisonment for ______ than ____ _____. FRE 609(a)(1).

Answer 63

more than one year

Question 64

In a ______ _____ - the evidence must be admitted if it survives a Rule 403 analysis. FRE 609(a)(1)(A).

Answer 64

civil case

Question 65

In a civil case - the evidence ______ be admitted if it survives a Rule 403 analysis. FRE 609(a)(1)(A).

Answer 65

MUST

Question 66

In a _______ _____ - if the witness is not the defendant the evidence must be admitted if it survives a Rule 403 analysis. FRE 609(a)(1)(A).

Answer 66

criminal case

Question 67

In a _______ ______- if the witness is the defendant the evidence must be admitted if the probative value outweighs its prejudicial effect to the defendant. FRE 609(a)(1)(B). Notice that this rule gives us what we call a “reverse 403” analysis because it is similar to Rule 403, but the requirement is flipped.

Answer 67

criminal case

Question 68

FRE 609(a)(2): Any ____ ______ with elements of dishonesty or false statements regardless of the punishment.

Answer 68

criminal conviction

Question 69

In either a ____ case or a _____ case - the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving or the witness’s admitting a dishonest act or false statement.

Answer 69

civil or criminal

Question 70

The exceptions under FRE 609(a) have a specific limitation as to the admission of the evidence and the limitation is governed by FRE ______.

Answer 70

609(b)

Question 71

The limitation under 609(b) only applies if more than ______ ____ have passed since
1. the witness’s conviction; or 2. the witness’s release from confinement for it - whichever is later.

Answer 71

10 years

Question 72

The limitation under 609(b) only applies if more than 10 years have passed since
1.
2.

Answer 72

1. the witness’s conviction
2. the witness’s release from confinement for it

whichever is later

Question 73

John Doe is convicted of the crime of fraud.

1/31/05 - conviction

1-31-06 - Imprisonment

1-31-09 - Release

5-15-17 - Date of Trial

Do the limitations of 609(b) apply?

Answer 73

The conviction is more than 10 years old; however, the date of release is less than 10 years old. Therefore, the limitations of 609(b) would not apply, and the prior conviction would be admissible.

Question 74

There are at least 2 circumstances when the date of conviction may be the date we apply under the rule:
1. ?
2.

Answer 74

1. a defendant may be sentenced to time served which might have ended before the actual conviction date (the date of the conviction is the later date of the two.)

Question 75

There are at least 2 circumstances when the date of conviction may be the date we apply under the rule:
1.
2. ?

Answer 75

2. a defendant may not have to serve any time, so the conviction date is all that would matter.

Question 76

Under Rule 609(a)(1), the crime must be “punishable by imprisonment for more than one year,” NOT actually imprisoned for more than one year (or even imprisoned at all.) True or False

Answer 76

True

Question 77

Assuming the time period for the conviction applies, then the court ______ admit the evidence subject to the limitations set forth in the applicable subparts under FRE 609(a)(1) and (2).

Answer 77

MUST

Question 78

When 609(b) applies, things are very different. Under this subpart, the evidence will only be admissible if two conditions are met:
1. ?
2.

Answer 78

1. The probative value of the evidence (supported by specific facts and circumstances) substantially outweighs the prejudicial effect of the evidence (another reverse 403).

Question 79

When 609(b) applies, things are very different. Under this subpart, the evidence will only be admissible if two conditions are met:
1.
2. ?

Answer 79

2. The proponent of the evidence gives the adverse party written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Question 80

Rule 609(c) sets forth additional limitations. If Rule 609(c) applies, then evidence of the conviction will NOT be admissible. Evidence of the conviction will not be admissible when
1. ?
2.
3.
4.
AND The person has not been convicted of a later crime punishable by death or imprisonment for more than one year.

Answer 80

1. The conviction has been the subject of a pardon

Question 81

Rule 609(c) sets forth additional limitations. If Rule 609(c) applies, then evidence of the conviction will NOT be admissible. Evidence of the conviction will not be admissible when
1.
2. ?
3.
4.
AND The person has not been convicted of a later crime punishable by death or imprisonment for more than one year.

Answer 81

2. The conviction has been the subject of an annulment

Question 82

Rule 609(c) sets forth additional limitations. If Rule 609(c) applies, then evidence of the conviction will NOT be admissible. Evidence of the conviction will not be admissible when
1.
2.
3. ?
4.
AND The person has not been convicted of a later crime punishable by death or imprisonment for more than one year.

Answer 82

3. The conviction has been the subject of a certificate of rehabilitation

Question 83

Rule 609(c) sets forth additional limitations. If Rule 609(c) applies, then evidence of the conviction will NOT be admissible. Evidence of the conviction will not be admissible when
1.
2.
3.
4. ?

AND The person has not been convicted of a later crime punishable by death or imprisonment for more than one year.

Answer 83

4. The conviction has been the subject of a procedure that is the equivalent of a pardon or annulment or certificate of rehabilitation.

Question 84

Evidence is not admissible per 609(c)(2):

The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. True or False.

Answer 84

True

Question 85

The next limitation is set out in Rule 609(d). Under this limitation, evidence of the previous conviction shall not be admissible if all four conditions are met:
1. ?
2.
3.
4.

Answer 85

1. The evidence is offered in a criminal case only

Question 86

The next limitation is set out in Rule 609(d). Under this limitation, evidence of the previous conviction shall not be admissible if all four conditions are met:
1.
2. ?
3.
4.

Answer 86

2. The adjudication being offered into evidence is of a witness other than the defendant in the criminal case in which it is offered;

Question 87

The next limitation is set out in Rule 609(d). Under this limitation, evidence of the previous conviction shall not be admissible if all four conditions are met:
1.
2.
3. ?
4.

Answer 87

3. A conviction for the same offense for which an adult would be convicted, is admissible to attack any person’s credibility; and

Question 88

The next limitation is set out in Rule 609(d). Under this limitation, evidence of the previous conviction shall not be admissible if all four conditions are met:
1.
2.
3.
4. ?

Answer 88

4. Admission of the evidence is necessary to fairly determine guilt or innocence

Question 89

Rule 609(e): Pendency of an appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Although a conviction is on appeal, the appeal does not affect the admissibility of the conviction. However, evidence of the pendency of the appeal would also be admissible. True or False.

Answer 89

True