Short and Happy Guide Chapter 5 - Character Evidence Flashcards
The rules themselves do not provide a definition of what character evidence is. True or False.
True
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.
Character Evidence
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.
Character Evidence
___________ _________ 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.
Character Evidence
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.
character
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? !
!!
Character Evidence; Other Crimes, Wrongs or Acts
Rule 404
Methods of Proving Character
Rule 405
Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition.
Rule 412
Similar Crimes in Sexual- Assault Cases
Rule 413
Similar Cases in Child-Molestation Cases
Rule 414
Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
Rule 415
Who May Impeach
Rule 607
A witness’s Character for Truthfulness or Untruthfulness.
Rule 608
Impeachment by Evidence of a Criminal Conviction
Rule 609
Character Evidence is impacted by three different things:
1. ?
2.
3.
- The purpose for which the character evidence is offered.
Character Evidence is impacted by three different things:
1.
2. ?
3.
- the method used to prove the character evidence; and
Character Evidence is impacted by three different things:
1.
2.
3. ?
- Whether the case is a criminal case or a civil case
Character Evidence is impacted by three different things:
1.
2.
3.
- The purpose for which the character evidence is offered;
- the method used to prove the character evidence; and
- whether the case is a criminal case or a civil case
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.
Rule 404(a)(1)
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. !
!1
Does the evidence in question relate to a person’s character or character trait? FRE 404(a)(1).
If no,
Rule 404 does not apply.
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,
Rule 404 does not apply.
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)
- 607
- 608, and
- 609
govern the admission of evidence.
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.
criminal cases
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.
Rule 405
405
405
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).
Criminal Cases
Rule 404(a)(2)(A)
A defendant’s Character in a Criminal Case
A ________ may offer evidence of her pertinent character trait. Rule 404(a)(2)(A).
defendant
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).
character
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.
Rule 404(a)(2)(A)
rebut
Rule 404(a)(2)(B)
A Victim’s Character Offered by a Defendant in a Criminal Case.
__________ may offer evidence of the ________ pertinent character trait. However, the admission of this evidence is subject to the limitations in Rule 412.
defendants
victims
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).
defendants
Rule 404(a)(2)(C)
A Victim’s Trait of Peacefulness in a Homicide Case
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).
homicide
homicide
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?
Rule 404(a)(2)(C). A Victim’s Trait of Peacefulness in a Homicide Case.
Rule _______ does not govern when character evidence is admissible, only how in what form the evidence will be admitted.
405(a)
Methods of Proving Character:
1.
2.
- By Reputation or Opinion
- By Specific Instances of Conduct
Under Rule 405(a), Character Evidence may be proved by testimony about:
1.
2.
The rule only permits ________ or _______ testimony, not specific examples.
- the person’s reputation or,
- an opinion about the person’s character
reputation or opinion
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.
specific instances
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). !
!
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.
405(b)
405
The exceptions for witnesses permitted by rule _______ apply to both civil and criminal cases.
Rule 404(a)(3)
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 _____.
607
608
609
Who may Impeach a Witness. What rule?
609
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.
anyone
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.
- reputation or opinion evidence and
- specific instances of conduct
Reputation or Opinion Evidence. What rule?
608(a)
Rule 608(a) identifies, what, when and how it is permitted.
What:
1.
2.
- The witness’s reputation for truthfulness
- The witness’s reputation for untruthfulness
Rule 608(a) identifies, what, when and how it is permitted.
When:
1.
2.
- Evidence as to untruthfulness may be attacked at any time.
- Evidence as to truthfulness may only be offered after then witness’s character for truthfulness has been attacked.
Rule 608(a) identifies, what, when and how it is permitted.
How:
1.
- Testimony about that witness’s reputation.
Specific Instances of Conduct.
What rule?
Rule 608(b)
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.
direct evidence
truthfulness or untruthfulness
In examining evidence subject to Rule 608, you must determine the following:
1. ?
2.
3.
a.
b.
- Is the evidence a criminal conviction under Rule 609
In examining evidence subject to Rule 608, you must determine the following:
1.
2. ?
3.
a.
b.
- Is the question on direct or cross-examination;
In examining evidence subject to Rule 608, you must determine the following:
1.
2.
3. ?
a.
b.
- Is the evidence regarding:
In examining evidence subject to Rule 608, you must determine the following:
1.
2.
3. Is the evidence regarding:
a. ?
b.
- the witness to whom the question is directed; or
In examining evidence subject to Rule 608, you must determine the following:
1.
2.
3. Is the evidence regarding:
a.
b. ?
b. another witness whose character the witness being cross-examined has testified about.
Rule 608 applies to all witnesses, whether they are the ________ or the ______.
defendant or victim
Impeachment by Evidence of a Criminal Conviction
What rule?
Rule 609
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).
death or imprisonment
A criminal conviction when the crime in the convicting jurisdiction was punishable by death or imprisonment for ______ than ____ _____. FRE 609(a)(1).
more than one year
In a ______ _____ - the evidence must be admitted if it survives a Rule 403 analysis. FRE 609(a)(1)(A).
civil case
In a civil case - the evidence ______ be admitted if it survives a Rule 403 analysis. FRE 609(a)(1)(A).
MUST
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).
criminal case
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.
criminal case
FRE 609(a)(2): Any ____ ______ with elements of dishonesty or false statements regardless of the punishment.
criminal conviction
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.
civil or criminal
The exceptions under FRE 609(a) have a specific limitation as to the admission of the evidence and the limitation is governed by FRE ______.
609(b)
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.
10 years
The limitation under 609(b) only applies if more than 10 years have passed since
1.
2.
- the witness’s conviction
- the witness’s release from confinement for it
whichever is later
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?
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.
There are at least 2 circumstances when the date of conviction may be the date we apply under the rule:
1. ?
2.
- 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.)
There are at least 2 circumstances when the date of conviction may be the date we apply under the rule:
1.
2. ?
- a defendant may not have to serve any time, so the conviction date is all that would matter.
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
True
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).
MUST
When 609(b) applies, things are very different. Under this subpart, the evidence will only be admissible if two conditions are met:
1. ?
2.
- The probative value of the evidence (supported by specific facts and circumstances) substantially outweighs the prejudicial effect of the evidence (another reverse 403).
When 609(b) applies, things are very different. Under this subpart, the evidence will only be admissible if two conditions are met:
1.
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.
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.
- The conviction has been the subject of a pardon
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.
- The conviction has been the subject of an annulment
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.
- The conviction has been the subject of a certificate of rehabilitation
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.
- The conviction has been the subject of a procedure that is the equivalent of a pardon or annulment or certificate of rehabilitation.
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.
True
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.
- The evidence is offered in a criminal case only
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.
- The adjudication being offered into evidence is of a witness other than the defendant in the criminal case in which it is offered;
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.
- A conviction for the same offense for which an adult would be convicted, is admissible to attack any person’s credibility; and
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. ?
- Admission of the evidence is necessary to fairly determine guilt or innocence
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.
True
