4. Character

b) Crimes or Other Acts. (1) Prohibited Uses. Evidence of a crime or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Fed. R. Evid. 404. Character Evidence; Crimes or Other Acts (B)

(1) Prohibited Uses. 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. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A)a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant's same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor. (3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.

Fed. R. Evid. 404. Character Evidence; Crimes or Other Acts (a) Character Evidence.

(a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct. (b) By Specific Instances of Conduct.When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

Fed. R. Evid. 405. Methods of Proving Character

(b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Fed. R. Evid. 404(b). Crimes or Other

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:... (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant's same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

Fed. R. Evid. 404. Character Evidence; Crimes or Other Acts

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Fed. R. Evid. 406. Habit; Routine Practice

Prosecution of Defendant for the murder of Victim. To prove that Victim was the first aggressor, Defendant calls Witness, who testifies that she knew Victim for many years, and that in her opinion, Victim was a violent person. During its rebuttal case, the prosecution calls Witness 2 to testify that she knew Victim for many years, and that in her opinion, Victim was a non-violent person. Defendant objects. How should the court rule?

Objection overruled. This is simply a situation in which the prosecution responds to defendant's evidence concerning the alleged victim's character with its own evidence concerning the victim's character. Both witnesses have testified in a form allowed by Rule 405(a): opinion.

Prosecution of Defendant for arson. The prosecution claims that Defendant set fire to the office building of Victim, a business rival, after Victim beat Defendant in bidding on a large contract. Defendant claims Victim burned the building for the insurance money. To prove that Victim was responsible for the fire, Defendant calls Witness to testify that she has known Victim for many years, and that in her opinion, Victim is a dishonest person. The prosecution objects. How should the court rule? Same case. During its rebuttal case, the prosecution calls Witness 3 to testify that Defendant is known in the community as a mobster. Defendant objects. How should the court rule?

Objection sustained. The trait about which Defendant's witness testified was Victim's honesty. The prosecution's evidence must concern the same trait.

Civil action for battery by Plaintiff against Defendant following a brawl in a bar. Defendant denies striking Plaintiff. To prove that Defendant did not strike Plaintiff, Defendant calls Witness to testify that she knows Defendant well, and that in her opinion, Defendant is a non-violent person. Plaintiff objects. How should the court rule?

Objection sustained. This is a civil action. The exception in Rule 404(a)(1) applies only to a criminal defendant, as made clear by a recent amendment to the rule.

Defendant is prosecuted for sexual assault. The prosecution's theory is that Victim went to defendant's hotel room willingly, but said "No" after he bit her. As tending to prove consent the defense calls a witness who will testify he dated Victim, and their physical relationship was "kinky."

The prosecution should object, and the court should not allow the witness to testify. This is precisely the type of sexual history evidence Rule 412(a) makes inadmissible when offered as tending to prove consent. Defendant is offering the witness' testimony because Defendant wishes the jury to infer that because Victim had a consensual sexual relationship with the witness, she consented with the Defendant.

If the evidence is relevant, why does the rule require its exclusion? Why not allow the court to admit it unless its probative value is substantially outweighed by the danger of unfair prejudice or other concerns contained in Rule 403?

The rule recognizes the policy against trial by character, which is deeply embedded in our culture. The rule is also based on considerations of efficiency by making the categorical judgment that except in certain categories of cases enumerated in Rule 404(a)(1), (2), and (3), the probative value of the evidence is sufficiently small and the dangers sufficiently great that the evidence simply should be excluded. A categorical rule is justified because too much time would be consumed if the court had to conduct a balance of probative value and prejudice (or other concerns) every time a party wished to present character evidence.

Prosecution of Defendant for arson. The prosecution claims that Defendant set fire to the office building of Victim, a business rival, after Victim beat Defendant in bidding on a large contract. Defendant claims Victim burned the building for the insurance money. To prove that Victim was responsible for the fire, Defendant calls Witness to testify that she has known Victim for many years, and that in her opinion, Victim is a dishonest person. The prosecution objects. How should the court rule?

Objection overruled. Under Rule 404(a)(2), defendant may offer evidence of a pertinent trait of the alleged crime victim. Rule 405(a) restricts that evidence to reputation and opinion. Here, Victim's character for dishonesty is pertinent because it makes it more likely that Victim would set fire to an insured building for the insurance money.

Once the defendant offers character evidence to prove her innocence, how may the prosecution respond?

(1) The prosecution may present character evidence to "rebut" the defendant's evidence. To rebut, the prosecution's evidence must concern either the same character trait or one closely enough related to that trait to undercut the effect of the defendant's evidence. (2) If the prosecution wishes to present its own witnesses, it will be bound by the same restrictions that apply to defendant's witnesses: the evidence may only take the form of reputation or opinion. (3) If the prosecution wishes to cross-examine defendant's character witnesses, the evidence may include reputation or opinion, and may also include references to specific instances of conduct. (This is supported both by Michelson and by Rule 405(a), the last sentence of which states that "[o]n cross-examination, inquiry is allowable into relevant specific instances of conduct.") Thus, a witness who has testified to a murder defendant's good community reputation for peacefulness might be asked, on cross-examination, "Did you ever hear that two years ago, defendant was arrested for being involved in a violent altercation at a professional football game?" If the witness testifies that she had heard of that event, the jury may well discount her credibility in assessing defendant's reputation. If the witness testifies that she had not heard of the event, the jury may well conclude that she is not sufficiently familiar with defendant's reputation to have rendered a valid assessment. (4) If the prosecution's question on cross-examination mentions a specific instance of conduct, the prosecution must satisfy the court that it has a good faith reason to believe the conduct actually occurred. Rumors that defendant was arrested as noted above, for example, may be false. The Michelson court recognized (in footnote 18) that the logical issue is whether the rumors were circulating, not whether the arrest actually occurred, but nonetheless held that unless the prosecution has a good faith basis for believing that the arrest occurred, it may not ask the question. The purpose of this requirement is to avoid wafting inaccurate rumors before the jury, even though the existence of rumors about which the witness has not heard would tend to undercut the witness's testimony.

(b) Special rule for rape victims

(b) Special rule for rape victims Rule 412 is a special exception to Rule 404(a)(2). The latter permits defendant to present evidence of the victim's character to prove action in conformity, while Rule 412 restricts this in a sexual assault case. Rule 412(a)(1) excludes evidence of victim's other sexual behavior and subsection (2) excludes evidence of a victim's sexual predispositions. It is certainly worth discussing the thinking behind Rule 412. Does everyone in the class agree with the assumption underlying Rule 412 that, in the name of protecting the complaining witness, we should limit the evidence defendant can proffer on the subject of sexual behavior or disposition? Note the exceptions to the ban on this evidence and the circumstances under which those exceptions might apply.

(R) Additional exceptions to the exclusion of character evidence to prove conduct; special rule for homicide prosecutions

Additional exceptions to the exclusion of character evidence to prove conduct; special rule for homicide prosecutions Additional exceptions to the exclusion of character evidence to prove conduct; special rule for homicide prosecutions We have seen that Rule 404(a) limits character evidence to prove conduct. But we have also seen that Rule 404(a)(2) permits the prosecution to rebut defense evidence of the victim's character. Rule 404(a)(2) contains another exception to the general rule that evidence of the victim's character is inadmissible to prove the victim's conduct. The rule states that evidence of the character trait of peacefulness of the alleged victim can be offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor. Notice that this part of the rule applies even if the defense has not offered evidence of the victim's character. The defendant need only have offered some evidence, in any form, that the victim was the first aggressor. Thus, this is an exception to the usual approach, which allows the prosecution to offer character evidence only to rebut defense character evidence. Rule 404(a) also has this additional feature: If the defense offers evidence that the alleged victim had a particular character trait (which we know the defense is permitted to do), then the prosecution may offer evidence that defendant had the same character trait. Again, this goes beyond the usual approach of the rule, which allows the defendant to offer evidence of his character and, only then, permits the prosecution to rebut.

HUDDLESTON V. UNITED STATES

Defendant was accused of knowingly possessing and selling stolen merchandise. He denied knowledge that the items (32,000 Memorex tapes) were stolen. The prosecution offered evidence that two months before the attempted sale of the tapes, defendant had obtained a large number of televisions from the same source who supplied the videotapes, and that defendant had offered to sell the televisions for $28 each. Assuming it was clear that the TVs were stolen, what was this evidence relevant to prove? The evidence could prove two things: Defendant has a dishonest character and therefore he probably committed the crime. Defendant knew his source supplied stolen goods in the past and therefore he knew the tapes were stolen. Which of these is permitted by 404? Only the second fact, which is admissible under 404(b). What if the evidence was that, when Defendant was 8 years old, he bought a stolen toy for a cheap price? Would this be relevant to prove knowledge in this case? Given the remoteness in time, the evidence is either irrelevant or of negligible probative value. It says nothing about the issue, which is whether defendant knew the TVs were stolen. How is the evidence concerning the tapes different? The TVs came from same source that provided the tapes. This establishes a logical connection between the prior act and the issue of knowledge in this case. What, however, is key to making this logical connection? What facts about the TVs must be shown to establish that the evidence is relevant to prove Defendant knew the tapes were stolen? The prosecution must show that the TVs were stolen and that defendant knew it. Which part of Rule 104 does the Court believe controls proof of these preliminary facts? Subdivision (b). Prior to this decision, most federal cases prior to this treated it as 104(a) question.

Degree of Required Similarity Between Charged and Uncharged Conduct

Degree of Required Similarity Between Charged and Uncharged Conduct As the following questions demonstrate, sometimes uncharged misconduct is probabive of a MIMIC fact only if it is similar in certain pertinent respects to the charged conduct. But this is not always the case.

(R) EVIDENCE OF SIMILAR EVENTS

EVIDENCE OF SIMILAR EVENTS This evidence concerns a person, place or event other than that directly at issue in the case. Normally evidence must be about the people, places, and events at issue to be relevant. But similar events evidence is relevant because, as the name suggests, it has some similarity to the persons, place or event at issue and, thus, tells us something about those matters. No specific rule governs this type of evidence. Rules 401 and 403 control the analysis. The degree of similarity between the similar events evidence and the matters at issue is often the key to that analysis.

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition. (b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant's constitutional rights. (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy. (c) Procedure to Determine Admissibility. (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must: (A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so at least 14 days before trial unless the court, for good cause, sets a different time; (C) serve the motion on all parties; and (D) notify the victim or, when appropriate, the victim's guardian or representative. (2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed. (d) Definition of "Victim." In this rule, "victim" includes an alleged victim.

Fed. R. Evid. 412. Sex Offense Cases: The Victim's Sexual Behavior or Predisposition

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses' statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule. (d) Definition of "Sexual Assault." In this rule and Rule 415, "sexual assault" means a crime under federal law or under state law (as "state" is defined in 18 U.S.C. § 513) involving: (1) any conduct prohibited by 18 U.S.C. chapter 109A; (2) contact, without consent, between any part of the defendant's body — or an object — and another person's genitals or anus; (3) contact, without consent, between the defendant's genitals or anus and any part of another person's body; (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)-(4).

Fed. R. Evid. 413. Similar Crimes in Sexual Assault Cases

(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses' statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule. (d) Definition of "Child" and "Child Molestation." In this rule and Rule 415: (1) "child" means a person below the age of 14; and (2) "child molestation" means a crime under federal law or under state law (as "state" is defined in 18 U.S.C. § 513) involving: (A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child; (B) any conduct prohibited by 18 U.S.C. chapter 110; (C) contact between any part of the defendant's body — or an object — and a child's genitals or anus; (D) contact between the defendant's genitals or anus and any part of a child's body; (E)deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or (F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)-(E).

Fed. R. Evid. 414. Similar Crimes in Child Molestation Cases

(a) Permitted Uses. In a civil case involving a claim for relief based on a party's alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414. (b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses' statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

Fed. R. Evid. 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation.

Plaintiff sues Defendant for battery following an altercation in a bar. Defendant claims she was not involved, or even present, at the time of the fight. To prove that another person, Zed, was the responsible party, Defendant wishes to offer evidence that Plaintiff had previously attacked Zed at a football game. Plaintiff objects. How should the court rule?

First, it doesn't matter that this is a civil case. Rule 404(b) applies in both civil and criminal cases, an important point to make. Rule 404 (b) evidence is admissible in civil cases, which distinguishes it from Rule 404 (a)(2) evidence, which is admissible only in criminal cases. Second, note that here, the evidence concerns the behavior of one person (Plaintiff), but is actually offered to prove the behavior of another person (Zed). Still, it is likely that Rule 404(b) applies because the evidence is not offered to prove a person's character, and action in conformity with that character. Further, because the evidence concerns a bad act of Plaintiff, the court needs to conduct the sort of relevance and Rule 403 analysis required by Rule 404(b). We can assume, then, that Rule 404(b) applies. The evidence is probably admissible because it is relevant to show a motive on the part of Zed to commit battery on Plaintiff, and thus that Zed, rather than Defendant, was the perpetrator of the act at issue. (If Plaintiff previously attacked Zed, Zed would have had a motive to retaliate.) Its probative value seems rather high on the issue of the identity of Plaintiff's attacker. There is some chance that the jury will use the evidence in an unfairly prejudicial manner (perhaps by finding against Plaintiff because of Plaintiff's own past conduct), but that prejudicial effect probably does not substantially outweigh the probative value of the evidence. As a result, the court will probably overrule Plaintiff's objection

(R) HABIT EVIDENCE

HABIT EVIDENCE Remind the students that there are different rules regulating habit and character evidence. Rule 406 declares habit evidence admissible while the rules regulating character, such as Rule 404, place significant limits on admissibility. How, then, do we know when evidence goes to prove habit or character? Habit evidence shows a regular practice of meeting a specific kind of situation with a certain kind of conduct. Often, it is reflex or automatic behavior and, thus, says nothing about the morals or ethics of the actor. On the other hand, character evidence says something general about a person and carries with it a moral or ethical judgment. Obviously, the concepts are related and sometimes are hard to tell apart.

MICHELSON V. UNITED STATES (R)

Here are a few comments and questions about Michelson you might raise before getting to the discussion questions. Defendant was charged with bribing a federal agent. He claimed he was entrapped. Defendant testified in his own defense and then called five so-called "character witnesses," each of whom testified that he had good reputation for honesty and being law-abiding. On cross-examination, the prosecutor asked each of the witnesses questions like, "Had you heard Defendant was arrested and/or convicted of trademark violation and receiving stolen goods?" Why does defendant introduce evidence concerning his reputation? Is he trying to prove character because that is an issue in the case or is he trying to prove character to suggest an inference as to some other fact? He is offering the evidence to prove his conduct - i.e., that he probably didn't initiate the bribe but was entrapped. The idea was that a person who is honest and law-abiding would not attempt to bribe a federal agent. Secondarily, the evidence also might permit an inference as to his credibility as witness. Does Rule 404(a) permit the defendant to use this evidence to prove his conduct? Yes. The rule permits a defendant to put his character in issue Before defendant introduced such evidence, could the prosecution have introduced evidence that defendant had a character for being dishonest? No. Rule 404 prohibits the prosecution in a criminal case from introducing evidence of defendant's character unless defendant has already placed his character in issue. In other words, the prosecution may only rebut - it cannot be the first party to offer character evidence to prove conduct. If this was civil action, could defendant have introduced evidence of his good character under Rule 404(a)? No. The word "accused" makes it clear that the exception in Rule 404(a) applies only in criminal cases. A recent amendment to that rule makes the point more explicitly by stating that the rule only allows the evidence to be offered in a "criminal case." Character evidence offered to circumstantially prove conduct is inadmissible in civil cases, with the exception of sexual abuse and child molestation cases under Rule 415. Recall, however, that the key to deciding admissibility of character evidence is to determine the purpose for which the character evidence is offered. The above analysis applies only if the character evidence is offered to prove conduct "in conformity" with that trait of character. We will see that different rules apply if the character evidence is offered to prove character when that is an issue in case or when it is offered to impeach a witness. So the defendant was properly permitted in Michelson to introduce positive character evidence. We have seen so far that there are limits to when character evidence may be admitted to prove conduct and who may offer that evidence. Even assuming this is one of those instances under Rule 404(a) when a party can introduce character evidence, there are limits as to how character may be proven. See Rule 405. Under Rule 405, could defendant have asked his character witnesses, "Do you know that defendant found a wallet on the street with $1,000 in it and returned all its contents to the owner?" No. Rule 405 limits when "specific instances of conduct" may be used to prove character. It can be used only on cross examination or when character is itself in issue. Did Defendant in Michelson try to prove character using a proper method? Yes: reputation. Note that opinion evidence also would also be permitted under 405. Reputation is a type of hearsay (really, mega hearsay, since it is what the whole community is saying out of court). Of course, the law generally regards hearsay as unreliable. Why then does Rule 405 favor the admissibility of reputation over specific instances? Remember, we are concerned that the jury will overweigh character evidence and use it improperly. Because evidence of specific acts is so concrete, it has a greater tendency to move a jury emotionally. Further, every person engages in thousands of specific acts of conduct that might be probative of her character. We do not have the time to receive all this evidence. Hence, isolated specific instances might be misleading. Reputation and opinion distills a life of specific acts into a condensed form. Assuming reputation is a proper way of proving character under Rule 405, would it survive a hearsay objection? Yes. See Rule 803(21). What objection should be made if it is shown that the witness is not a member of the community in which the witness claims this reputation prevails? Rule 602, lack of personal knowledge. Back to the case . After defendant's character witnesses testified about defendant's reputation for having a good character, the prosecutor asked them questions like, "did you hear defendant was arrested and/or convicted, etc." Is this a permissible manner of proving character under Rule 405? Yes. Specific instances are permitted on cross-examination. At the time this case was decided, however, Rule 405 was not law and proving character through specific instances was not permitted even on cross. What, then, were these questions and answers permissible to prove (if not character)? The prosecution wanted to show that the defense witnesses lacked sufficient knowledge of defendant's reputation to give weight to their testimony on direct; i.e. if people were talking about defendant's arrest and conviction and the witnesses did not hear these conversations, then their description of reputation was not accurate. Note that, in order to ask these questions of the witnesses, the prosecutor had to show to the judge evidence of a good faith belief that this conviction and arrest had occurred. Otherwise, the court might grant a motion for mistrial. But why must there be some evidence these events took place if the evidence is not admissible to show defendant's character and conduct? After all, if this is what people in the community are saying about defendant, then that is his reputation whether what people are saying is accurate or not. We know that when jurors hear this line on inquiry, they will consider it not only for permissible purposes (evaluating the weight of the witness's reputation testimony) but also for the impermissible purpose (concluding defendant is a bad man and thus, should be convicted). If we know that the jury is going to draw this impermissible inference, we want to make sure there is a factual basis for it! So, the reputation evidence was admissible here to prove defendant's conduct. Was it relevant for any other character purpose? Yes: proving the credibility of defendant as witness. This use of character evidence is regulated by Rules 608 & 609, which are discussed in a subsequent chapter.

(R) Judge/Jury Functions: Required Quantum of Proof of Uncharged Misconduct

Judge/Jury Functions: Required Quantum of Proof of Uncharged Misconduct Evidence under Rule 404(b) always involves some bad act. But how do we know if the bad act actually took place? The rule does not say that the bad act had to result in a conviction but, if it did, that should be sufficient evidence that the act took place since it is based on proof beyond a reasonable doubt. Note that Rule 803(22) makes conviciton evidence admissible over a hearsay objection. But what if there was no conviction? What is the quantum of proof needed to demonstrate the bad act? Of course, we are looking at another issue of preliminary fact under Rule 104. The issue is whether we apply Rule 104(a) (requiring that the court conclude by a preponderance of the evidence that the bad act occurred before the court may admit permit the jury to consider the evidence) or Rule 104(b) (requiring only that the court apply the less demanding sufficient to support a finding standard before permitting the jury to consider the evidence)?

Negligence action by Plaintiff against Defendant, a supermarket owner, for injuries suffered when Plaintiff slipped and fell on the floor of the produce section. It was raining outside when the accident occurred. Plaintiff claims the floor was wet and slippery, causing her fall. Defendant denies that the floor was unreasonably slippery when wet. To prove that the floor surface was unreasonably dangerous, Plaintiff wishes to present evidence that in the past two years, several customers have suffered slip-and-fall accidents in the produce section. Defendant objects. How should the court rule?

More facts needed. Did the other accidents take place under similar circumstances? Most especially, was it raining when the other customers fell? What was the condition of the floor at the time the others fell? Was the floor surface changed during this time period? If Plaintiff can show that the conditions were sufficiently similar, the court should overrule Defendant's objection.

Negligence action by Plaintiff against Defendant arising from an automobile accident. Plaintiff claims Defendant ran a red light and struck Plaintiff's car, causing the injury. To prove Defendant ran the light, Plaintiff calls Witness, who is familiar with Defendant's community reputation, to testify that Defendant is known as a careless driver. Defendant objects. How should the court rule? Same case. Is the evidence Plaintiff wishes to present relevant? Why or why not?

Most people would say the evidence is relevant. We tend to believe in the existence of "traits" of character that inform our behavior in different situations. If we know that a person is a careless driver, we are likely to think that she is more likely to have acted carelessly on the occasion in question than if she did not have that character trait. Though experimental psychologists have cast doubt on the actual probative value of such evidence, few would deny that it satisfies the lenient definition of relevance in Rule 401.

(R) OTHER CRIMES, WRONGS, OR ACTS

OTHER CRIMES, WRONGS, OR ACTS We have seen that Rule 404(a) imposes significant limits on the admissibility of character evidence to prove conduct. Rule 404(b) tempers the effect of those limits. Rule 404(b) provides that evidence of other crimes, wrongs, or acts is admissible when relevant to prove any fact other than character. The rule provides several examples of facts other than character that the evidence might be admissible to prove. Generations of students have remembered the list using the acronym MIMIC (motive, identity, mistake/ accident or absence thereof, intent, common plan or scheme). In a typical case under Rule 404(b), the fact-finder is offered evidence that defendant committed another act (the "uncharged misconduct") that permits the inference that the defendant committed the charged act or had the mental state required to convict. For example, suppose defendant is charged with selling drugs to an undercover officer on a certain street corner. Defendant admits selling the drugs, but claims entrapment. To prove a preexisting intent to sell the drugs, and thus rebut the claim of entrapment, the prosecution offers evidence that on another occasion on the same corner, defendant sold the same type of drug to another individual (not an undercover officer). The evidence of the prior sale (the uncharged misconduct) is the predicate for an inference that defendant possessed the required intent on the charged occasion. A different kind of logic applies in a few other situations. This logic is explored in Robbins.

Prosecution of Defendant for sexual assault on Victim. Defendant admits having sex with Victim but claims Victim consented. To prove consent, Defendant wishes to testify that prior to the alleged sexual assault, Defendant and Victim had engaged in consensual sexual intercourse on two occasions. The prosecution objects. How should the court rule?

Objection overruled unless the circumstances indicate that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. The existence of an exception in rape-shield statutes for cases in which defendant claims consent and the evidence concerns prior sexual activity between the same two people does not take away the trial court's discretion under Rule 403. If, for example, the two consensual episodes occurred long before the alleged sexual assault, or the evidence strongly suggests that the relationship had ended some time before the alleged sexual assault, the court might exclude the evidence. The same might be true if physical evidence suggests that the event at issue involved violence.

Negligence action by Plaintiff against Defendant, a store owner, following an incident in which Plaintiff tripped on the sidewalk in front of Defendant's store. Plaintiff alleges that the cracked sidewalk created unreasonable danger to customers and others passing by the store. Assume Defendant is responsible for maintaining a reasonably safe sidewalk. Defendant admits the presence of the crack but denies that the sidewalk is unreasonably dangerous. To prove the existence of unreasonable danger, Plaintiff wishes to present evidence that in the period from six months before Plaintiff's fall until six months after Plaintiff's fall, five other people had tripped on the same crack, all of them under similar weather conditions. Defendant objects. How should the court rule?

Objection overruled. As long as the condition of the sidewalk was sufficiently similar for all the events, the evidence tends to demonstrate some degree of danger. Whether it is an unreasonably great risk will be for the jury to decide.

Negligence action by Plaintiff against Defendant, a store owner, following an incident in which Plaintiff tripped on the sidewalk in front of Defendant's store. Plaintiff alleges that the cracked sidewalk created unreasonable danger to customers and others passing by the store. Assume Defendant is responsible for maintaining a reasonably safe sidewalk. Defendant admits the presence of the crack but denies that the sidewalk is unreasonably dangerous. To prove the existence of unreasonable danger, Plaintiff wishes to present evidence that in the period from six months before Plaintiff's fall until six months after Plaintiff's fall, five other people had tripped on the same crack, all of them under similar weather conditions. Defendant objects. How should the court rule? Same facts. Assume that in support of its motion to exclude Plaintiff's evidence of the other falls, Defendant wishes to present evidence that during the same time period, thousands of pedestrians walked over the same spot in the sidewalk, and that Defendant had received no other reports of falls or injuries. How should the court rule?

Objection overruled. Both the occurrence of some other accidents and their relative infrequency will be factors a rational jury would take into account in determining the degree of danger posed by the crack.

Prosecution of Defendant for bank robbery. After obtaining the money, the robbers fled in a minivan. Defendant denies involvement. T o prove Defendant' s involvement, the prosecution offers evidence that Defendant stole the minivan the day before the bank robbery. Defendant objects. How should the court rule?

Objection overruled. Defendant's theft of the key both gives Defendant the opportunity to rob the store and is an act in preparation for the robbery. Both ways, the evidence is relevant on a non-character theory and has enough probative value to justify admission.

Prosecution of Defendant for possession of cocaine. Defendant admits that the cocaine was found in his apartment, but claims he thought it was flour. To prove Defendant knew the substance was cocaine, the prosecution wishes to prove that several months earlier, Defendant was convicted of cocaine possession. Defendant objects. How should the court rule? Same case. Assume Defendant argues that the prosecution should not be permitted to offer the evidence because Defendant was acquitted in the prior trial. How should the court rule?

Objection overruled. Even though Defendant was acquitted, it is highly likely that Defendant learned what cocaine looked like during that trial. As in Question 1, knowledge obtained tends to be retained.

Defendant is sued for sexual assault. Plaintiff offers evidence Defendant was charged with sexual assault in two instances. Defendant objects, arguing the charge was dropped in one case, and that he was acquitted in the second. How should the court rule?

Objection overruled. In a civil cases alleging sexual assault, evidence the defendant has committed other sexual assaults is made admissible by Rule 415. In accordance with Congressional intent, evidence of uncharged conduct is made admissible by Rule 415. See, e.g. Johnson v. Elk Lake School District, 283 F.3d 138, 152 (3rd. Cir 2002). Courts have held that the evidentiary standard for admitting evidence under Rules 413-415 is similar to the standard for admission under Rule 404(b). See, e.g. United States v. Guidry, 456 F.3d 493, 502-503 (5th Cir. 2006). Under Rule 404 (b) evidence of prior conduct is admissible even where the defendant was acquitted. Dowling v. United States, 493 U.S. 342, 348-349 (1990) .

Prosecution of Defendant for the murder of Victim. The prosecution alleges that Defendant planned and carried out the murder of Victim, Defendant's business rival. To prove Defendant committed the crime, the prosecution calls Witness during its case-in-chief to testify that she has known Defendant for many years, and that in her opinion, Defendant is a violent person. Defendant objects. How should the court rule? Same case. During his case-in-chief, Defendant calls Witness to testify that she has lived in the same community as Defendant for many years, that she knows Defendant's reputation for peacefulness, and that Defendant's reputation is that he is a peaceful person. The prosecution objects that Defendant has offered inadmissible character evidence. How should the court rule?

Objection overruled. Rule 404(a)(1) allows the accused to offer evidence of her character to prove innocence. That is the purpose of the evidence in this case. Rule 405(a) restricts character evidence on direct examination to reputation and opinion evidence. Witness's testimony is in the form of reputation.

Prosecution of Defendant for arson. The prosecution claims that Defendant set fire to the office building of Victim, a business rival, after Victim beat Defendant in bidding on a large contract. Defendant claims Victim burned the building for the insurance money. To prove that Victim was responsible for the fire, Defendant calls Witness to testify that she has known Victim for many years, and that in her opinion, Victim is a dishonest person. The prosecution objects. How should the court rule? Same case. During its rebuttal case, the prosecution calls Witness 2 to testify that Defendant is known in the community as a dishonest person. Defendant objects. How should the court rule

Objection overruled. Rule 404(a)(1) provides that when defendant offers evidence concerning the alleged victim's character, the prosecution may respond with evidence concerning the same trait of the defendant's character. Here, Defendant offered evidence concerning Victim's character for honesty. The prosecution's response was to offer evidence concerning Defendant's honesty. It doesn't matter that Defendant's evidence took the form of opinion, while the prosecution's evidence was in the form of reputation.

Prosecution of Defendant for the murder of Victim. To prove that Victim was the first aggressor, Defendant calls Witness, who testifies that she knew Victim for many years, and that in her opinion, Victim was a violent person. During its rebuttal case, the prosecution calls Witness 2 to testify that she knew Victim for many years, and that in her opinion, Victim was a non-violent person. Defendant objects. How should the court rule? Same case. Assume that instead of testifying as in Question 5, Witness states that she was present at the time of the incident, that Victim attacked Defendant with a knife without notice or provocation, and that Defendant responded by shooting Victim. During its rebuttal case, the prosecution wishes to call Witness 2 to testify to Victim's character for peacefulness. Defendant objects. How should the court rule?

Objection overruled. Rule 404(a)(2) provides that in a homicide prosecution in which defendant offers testimony that the alleged victim was the first aggressor, the prosecution may offer evidence of the victim's character for peacefulness. That is the situation here. Note that this provision allows the prosecution to be the first party to offer character evidence to prove conduct. Defendant has "opened the door" to such evidence even without offering character evidence to prove that Victim was the first aggressor

Prosecution of Defendant for rape of Victim, who was attacked while walking to her car after seeing a movie. Defendant denies being the perpetrator. To prove that Defendant committed the crime, the prosecution calls Witness to testify that Defendant has committed several rapes in the past few years. Defendant objects. How should the court rule?

Objection overruled. Rule 413 is intended to admit this evidence to prove that Defendant was the person who committed the crime.

Prosecution of Defendant for bank robbery. The perpetrator entered the bank wearing a Smokey the Bear costume, approached a teller, told the teller that money was needed to "feed the hungry bears," held out a large burlap sack for the teller to fill, and left after the teller did as she was told. Defendant claims to have been in another city when the crime was committed. The prosecution calls a witness to testify that on two occasions in the past month, he served as lookout for Defendant when Defendant committed bank robberies in the same city using the method just described. Defendant does not deny committing the other robberies, but objects to admission of the evidence on the ground it violates the character evidence rule. How should the prosecutor respond? How should the court rule?

Objection overruled. The evidence is admissible to prove identity by means of modus operandi. The method Defendant used in the other robberies was distinctive, and matched that used in the present case. It is reasonable for a fact-finder to believe that the same person committed all of the crimes. Even though it is possible that a copycat committed the charged crime, the probative value of the evidence is probably quite high.

Murder prosecution. Victim Roadrunner was shot. Defendant Coyote admits shooting Roadrunner but claims it was accidental. The prosecution offers evidence that, in the week before the shooting, Coyote tried to drop an anvil on Roadrunner, gave Roadrunner a birthday cake with sticks of dynamite for candles, and put a black widow spider in Roadrunner's athletic supporter. Coyote objects. How should the court rule?

Objection overruled. The evidence is not offered to prove Coyote's character, but to prove intent and the absence of mistake or accident. Note that the specific instances of conduct are admissible here because they are not being used to prove Coyote's character.

Prosecution of Defendant for the murder of Victim. The prosecution alleges that Defendant planned and carried out the murder of Victim, Defendant's business rival. To prove Defendant committed the crime, the prosecution calls Witness during its case-in-chief to testify that she has known Defendant for many years, and that in her opinion, Defendant is a violent person. Defendant objects. How should the court rule? During his case-in-chief, Defendant calls Witness to testify that she has lived in the same community as Defendant for many years, that she knows Defendant's reputation for peacefulness, and that Defendant's reputation is that he is a peaceful person. The prosecution objects that Defendant has offered inadmissible character evidence. How should the court rule? Same case. If the prosecution also objects to the evidence in Question 7 on hearsay grounds, how should the court rule?

Objection overruled. The evidence of Defendant's community reputation for peacefulness is hearsay. Though students may resist this fact, they need to understand that reputation is hearsay if offered to prove the truth of the matter asserted because it is an out-of-court statement by the community. (The community's statement, in essence, is, "Defendant is a peaceful person.") Though the evidence is hearsay, it is admissible under Rule 803(21), which provides an exception for "[r]eputation of a person's character among associates or in the community." Thus, the court should overrule the prosecution's hearsay objection.

Prosecution of Defendant for possession of cocaine. Defendant admits that the cocaine was found in his apartment, but claims he thought it was flour. To prove Defendant knew the substance was cocaine, the prosecution wishes to prove that several months earlier, Defendant was convicted of cocaine possession. Defendant objects. How should the court rule?

Objection overruled. The evidence tends to show Defendant's knowledge of cocaine. People who possess knowledge tend to retain that knowledge. Thus, prior knowledge tends to show knowledge at the time of the possession at issue in the case.

Prosecution of Defendant, a restaurant parking valet, for car theft. The day before the car was stolen, its owner had driven it to the restaurant, and Defendant parked it. Defendant denies committing the crime. To prove Defendant committed the crime, the prosecution wishes to present evidence that when Defendant parked the car the day before it was stolen, he made a clay impression of the key. Defendant objects on the ground that the uncharged and charged acts are not sufficiently similar. How should the court rule?

Objection overruled. The prosecution's theory could be that Defendant made the key impression in preparation for stealing the car, or that making the impression gave Defendant the opportunity to steal the car.) For purposes of either theory, the similarity of the two acts is not important.

Prosecution of Defendant for the murder of Victim. The prosecution alleges that Defendant planned and carried out the murder of Victim, Defendant's business rival. To prove Defendant committed the crime, the prosecution calls Witness during its case-in-chief to testify that she has known Defendant for many years, and that in her opinion, Defendant is a violent person. Defendant objects. How should the court rule? Same case. During its cross-examination of Witness, the prosecution asks, "Did you hear that last year, Defendant was involved in a violent altercation while attending a high school football game?" Defendant objects. How should the court rule?

Objection overruled. The very type of evidence denied to the defendant on direct examination of Witness is allowed on cross-examination. Why is the prosecution permitted to offer evidence thought too time-consuming and distracting if offered by the defense? Presumably, the prosecution is entitled to test the validity and credibility of Witness's reputation testimony concerning Defendant's character. If Witness did not know of a fact that would have affected her opinion in a material way, Witness's testimony has little value.

Prosecution of Defendant for the murder of Victim. Defendant admits running Victim over with a car, but claims it was an accident. The prosecution alleges that Defendant, Victim, Zed, and Abel had all participated in a successful bank robbery. The prosecution wishes to present evidence that just after killing Victim, Defendant shot Zed to death and cut the brake cable on Abel's car, causing Abel to be involved in a fatal accident. Defendant objects to evidence of the killings of Zed and Abel, alleging lack of similarity between those acts and the charged crime. How should the court rule?

Objection overruled. There are two steps. First, the evidence is relevant to show a motive to kill Victim. The motive would arise from the desire to reap all the benefits of the robbery. Second, from the motive, one would infer Defendant's intent to commit the killing. The lack of similarity in the methods of killing the three people does not matter. Defendant might argue that motive can be established sufficiently by evidence that Defendant and Victim committed the robbery together, and that the prejudice resulting from admission of the evidence that Defendant killed Zed and Abel substantially outweighs any probative value it has. A court probably won't accept this argument. Two things are important: first, the existence of a motive, and second, the willingness to act on it. Certainly, the motive can be established simply by presenting evidence that Defendant and Victim had participated in the bank robbery, but the willingness to act on the motive cannot be established with only the robbery evidence. Still, does the evidence violate the character rule when offered on the second inference (the willingness to act on the motive)? This is a tough question, and it arises in just about any motive-to-action or motive-to-intent case. A kind of propensity inference is necessary; one has to believe that a person with a motive is more likely to act consistently with the motive than is a person chosen at random. But one can make that is an inference about anyone, not only a bad person. Arguably, anyone with a motive would have a propensity to act in accordance with it. If that is true, the inference does not rely on the person's character. Students should appreciate that the outcome of this problem is highly dependent on the court's assessment of the balance of probative value and unfair prejudice. When motive-to- action or motive-to-intent are involved, there is a real risk that the jury will employ the forbidden character inference rather than the inference arising from the natural human tendency to act on a motive, regardless of the nature of the act itself.

Veep, the vice-president of a bank loses money betting with a bookie. To cover his losses, he embezzles money from the bank. He learns that bank examiners will examine the bank's books the next day. Fearing they will discover that cash is missing, he sets the bank on fire. Veep is charged with arson, and the prosecutor offers evidence of Veep's gambling and embezzlement. Veep objects. How should the court rule?

Objection overruled. This evidence is not offered to show a criminal character from which the jury will be asked to infer that Veep is the sort of person who sets buildings on fire. Rather, the evidence of these other bad acts is all relevant apart from character: they show motive for the arson. Bad acts can be admitted in a criminal case to prove any relevant matter that is not character. But teachers might want to note that bar examiners focus on just a few such matters: Motive, Intent, Mistake (absence of), Identity, Common plan or scheme (MIMIC)

Negligence action arising from an intersection collision. Plaintiff claims that Defendant ran the stop sign. To prove that Defendant did so, Plaintiff calls Witness to testify that for the past year, she has ridden with Defendant almost every day to school, that they always cross the intersection in question, and that Defendant almost always fails to stop at the stop sign. Defendant objects on grounds Witness's testimony is inadmissible character evidence. How should the court rule?

Objection overruled. Witness's testimony establishes an adequate foundation for habit. The stimulus (the stop sign) is specific, and Defendant's response (failing to stop) is also specific. The number of instances is sufficient as well. Unlike the character evidence rules we have discussed, habit evidence is generally admissible to prove conduct in conformity, and this is true whether the case is criminal or civil and regardless of which party offers it.

Prosecution of Defendant for the murder of Victim. The prosecution alleges that Defendant planned and carried out the murder of Victim, Defendant's business rival. To prove Defendant committed the crime, the prosecution calls Witness during its case-in-chief to testify that she has known Defendant for many years, and that in her opinion, Defendant is a violent person. Defendant objects. How should the court rule? Same case. On direct examination, Defendant also asks Witness, "Have you heard about an occasion two years ago when Defendant refused an opportunity to fight with a person who had attacked Defendant's child?" The prosecution objects. How should the court rule?

Objection sustained. Because this is direct examination, the witness may not testify to Defendant's character in the form of specific instances of conduct. This is somewhat anomalous. After all, in most situations, a party is entitled not only to elicit a witness's opinion or other testimony, but to support that testimony by showing its basis. (Remember that reputation evidence is an opinion reached by a group of people.) There are at least two reasons why Rule 405(a) does not allow such evidence here: (1) it would consume too much time for very little gain; and (2) the evidence might distract the fact-finder from its primary job of determining the facts at issue, not what might have happened on another occasion.

Prosecution of Defendant for rape of Victim, who was attacked while walking to her car after seeing a movie. Defendant denies being the perpetrator. To prove that Defendant committed the crime, the prosecution calls Witness to testify that Defendant has committed several rapes in the past few years. Defendant objects. How should the court rule? Same case as in Question 1. The prosecution wishes to offer evidence that Defendant has committed two acts of child molestation. Defendant objects. How should the court rule?

Objection sustained. In a rape prosecution, the court may admit other acts of rape, not acts of child molestation.

Negligence action by Plaintiff against Defendant arising from an automobile accident. Plaintiff claims Defendant ran a red light and struck Plaintiff's car, causing the injury. To prove Defendant ran the light, Plaintiff calls Witness, who is familiar with Defendant's community reputation, to testify that Defendant is known as a careless driver. Defendant objects. How should the court rule?

Objection sustained. Plaintiff is trying to prove Defendant ran the red light by showing Defendant's character for carelessness, and from that character trait, the likelihood that Defendant acted in conformity with her character at the time of the accident. This violates the general prohibition of Rule 404(a).

Prosecution of Defendant for arson. The prosecution claims that Defendant set fire to the office building of Victim, a business rival, after Victim beat Defendant in bidding on a large contract. Defendant claims Victim burned the building for the insurance money. To prove that Victim was responsible for the fire, Defendant calls Witness to testify that she has known Victim for many years, and that in her opinion, Victim is a dishonest person. The prosecution objects. How should the court rule? Same case. The prosecutor asks Witness 2 to relate an instance of Defendant's dishonesty. Defendant objects. How should the court rule?

Objection sustained. Rule 405(a) does not permit a party to offer evidence of specific instances of conduct on direct examination.

Prosecution of Defendant for rape of Victim, who was attacked while walking to her car after seeing a movie. Defendant denies being the perpetrator. To prove that Defendant committed the crime, the prosecution calls Witness to testify that Defendant has committed several rapes in the past few years. Defendant objects. How should the court rule? Same case as in Question 2. The prosecution also wishes to offer evidence that Defendant has a community reputation as a dangerous sexual criminal. Defendant objects. How should the court rule?

Objection sustained. Rule 413 only admits evidence of other specific instances of conduct, not of reputation or opinion concerning the defendant's character for this type of misconduct.

Negligence action arising from an intersection collision. Plaintiff claims that Defendant ran the stop sign. To prove that Defendant did so, Plaintiff calls Witness to testify that for the past year, she has ridden with Defendant almost every day to school, that they always cross the intersection in question, and that Defendant almost always fails to stop at the stop sign. Defendant objects on grounds Witness's testimony is inadmissible character evidence. How should the court rule? Same case. Defendant calls Witness 2 to testify that she has known Defendant for many years, has ridden with Defendant on hundreds of occasions, and that in her opinion, Defendant is a careful driver. Plaintiff objects on grounds Witness 2's testimony is inadmissible character evidence. How should the court rule?

Objection sustained. Testimony of Defendant's general tendency to be careful is far too general to qualify as habit. It is character evidence, and such evidence is not admissible in a civil case to prove defendant's conduct in conformity with her character.

Prosecution of Defendant for the murder of Victim. The murderer waited outside Victim's home, accosted him when he got out of his car, forced him into the house, took all the money and jewelry from the house, and shot him. Defendant denies committing the crime. To prove Defendant was the killer, the prosecution wishes to present evidence that several weeks earlier, Defendant had committed a murder in a nearby town using the same method. Defendant objects on the ground the two acts are not sufficiently similar. How should the court rule?

Objection sustained. The prosecution's theory appears to be modus operandi, but that theory requires a great degree of similarity as well as uniqueness. There is nothing so unique about the method used in this case as to earmark it as Defendant's act. In all likelihood, this is a common method used by murderers who seek to rob and then kill their victims. The distinction between the modus operandi use of the evidence and the forbidden character use is not great enough to merit admission.

Prosecution of Defendant for the murder of Victim. The prosecution alleges that Defendant planned and carried out the murder of Victim, Defendant's business rival. To prove Defendant committed the crime, the prosecution calls Witness during its case-in-chief to testify that she has known Defendant for many years, and that in her opinion, Defendant is a violent person. Defendant objects. How should the court rule?

Objection sustained. Under Rule 404(a), the prosecution is not permitted to offer evidence of the accused's character to prove that the accused acted in conformity with that character trait. That is the only purpose for which the evidence in this case is relevant. The evidence tends to show a character for violence, from which the fact-finder might conclude that Defendant acted in accordance with that character by killing Victim.

Civil action where the plaintiff alleges a police officer violated her deceased husband's civil rights by shooting and killing deceased. The trial court admits evidence of deceased's history of violent encounters with police officers as tending to show deceased attacked the officer first. The judge reasons the evidence is admissible because the claim against the officer is criminal in nature. Plaintiff appeals on the ground this was inadmissible character evidence. How should the appellate court rule?

Prior to the amendment of Rule 404(a)(1), at least one court held that in a civil rights action with facts similar to this question police officers should be allowed to offer character evidence to prove that they did not act wrongfully. In that case, Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986), the court emphasized that the case was similar to a murder prosecution in that the defendants were essentially charged with the unlawful killing of the individual. Perrin must come out differently under the Rule as amended.

ROBBINS V. STATE

ROBBINS V. STATE Defendant was charged with killing the seventeen-month-old daughter of his live-in girlfriend. The victim was found with bruises on her body, which defendant contended could have been caused by incorrectly performed CPR efforts rather than from any intentional act by defendant. Defendant testified that he loved the victim and would not have harmed her. Over defense objections under Rules 404 and 403, the trial court permitted the prosecution to present evidence that, on four other instances within a six month period when the victim was left in defendant's care, she suffered various physical injuries. The Texas appellate court affirmed. The ground cited by the majority was that the evidence was admissible under Rule 404 to prove a fact other than defendant's character, namely, that his relationship with the victim was not a loving one, as he alleged. It is the theory of admissibility in the concurring opinion, however, that draws our attention. The concurrence argues that the prosecution's evidence overcomes a 404 (and 403) objection by application of what Wigmore called "the doctrine of chances." Under this theory, the evidence is not admitted to show defendant is violent or murderous or has some other pertinent character trait. Rather, the evidence that the victim repeatedly suffered physical injuries when in defendant's care is just too unusual to be attributable to coincidence or accident. Thus, the evidence increases the probability that her fatal injuries were caused by an act of defendant. This theory has a commonsense appeal but, because it cannot be definitively stated exactly when prior incidents are too unusual to be a coincidence, it may be difficult to draw lines in some cases. For example, what if the victim previously had been injured just once while in defendant's care? What if she had been injured four times, but defendant had taken care of the victim many more times without any problem? What if the circumstances concerning the prior injuries were different from the circumstances involved in the case at bar? When is the probative value of the evidence under a doctrine of chances theory substantially outweighed by the danger that the jury will use the evidence for the improper purpose of drawing a character/conduct inference?

Why does the law allow a criminal defendant to prove her innocence by offering evidence of her good character, but, except in very limited circumstances, does not allow the prosecution to present character evidence during its case-in-chief to prove the defendant's guilt?

Teachers might explore this question first by reminding the class that generally, the evidence rules apply equally to all parties in both criminal and civil cases. Students should recognize that this is one of the few situations in which the rules explicitly operate differently for one type of party than for others. (In other situations, the Constitution requires a court to admit evidence offered by a criminal defendant that otherwise would violate the evidence rules, but constitutional demands always trump evidence rules.) The rule permitting the defendant to offer character evidence to prove innocence has long been maintained. Perhaps its strongest rationale comes from the idea that criminal defendants have so much to lose that the law should bend over backward to given them every chance to prove their innocence. If character evidence is relevant (though often of low probative value), then perhaps criminal defendants should have the opportunity to present that evidence.

Explain the reasoning behind the Supreme Court's holding in Huddleston that Rule 104(b) applies to the question whether a person actually committed the uncharged misconduct. Use the following hypothetical to illustrate your explanation: Prosecution of Defendant for the murder of V ictim, the lover of Defendant' s spouse. Defendant denies committing the crime. T o prove guilt, the prosecution offers evidence that a week before Victim was killed, Defendant attempted to run Victim over while Victim was crossing the street. Defendant denies being the person whose car nearly ran Victim over.

The Court views this as a conditional relevancy problem. The preliminary question of fact is whether the person engaged in the uncharged misconduct. If the preliminary fact is not true, the evidence would be irrelevant. In the hypothetical case, if Defendant was not the person who attempted to run Victim over a week before Victim was killed, that event would be irrelevant to the question whether Defendant was Victim's killer. Because of that, the jury will only consider the evidence of the prior event if it believes Defendant was the driver; if the jury does not believe Defendant was the driver, it will ignore the evidence.

Prosecution of Defendant for failing to stop her car on police orders after she ran a red light. The police followed Defendant for many miles before finally shooting out Defendant's tires, forcing her to stop. Defendant claims she did not know the police were chasing her. To prove Defendant's knowledge, the prosecution wishes to offer evidence that a few days before the incident, Defendant robbed a bank. Defendant objects on grounds the evidence is irrelevant except on the basis that it shows her bad character, and that it is not admissible for that purpose. How should the court rule?

The court probably should overrule the objection. Defendant's prior bank robbery supplies a motive for Defendant to evade the police. From the existence of a motive, one might infer that Defendant had a different reason for not stopping than the one claimed—to avoid being apprehended for the bank robbery.

Prosecution of Defendant for possession of a stolen laptop computer. Defendant admits possessing the computer, but claims she had just found it at a bus stop and planned to turn it in to the bus company. To prove Defendant planned to keep the laptop, the prosecutor wishes to present evidence that police found three other laptops in Defendant's home. None of these machines belonged to Defendant. Defendant objects to the prosecution's evidence on the ground it constitutes inadmissible character evidence. How should the court rule?

The court probably should overrule the objection. Here, the evidence is offered on the basis of "doctrine of chances" reasoning. While it is possible that Defendant might have found one laptop computer and intended to return it, it seems highly unlikely that she would have come into possession of three such machines in a short period of time without unlawful intent. Courts treat this reasoning as non-character reasoning.

An earlier hypothetical stated as follows: "Prosecution of Defendant for bank robbery. The perpetrator entered the bank wearing a Smokey the Bear costume, approached a teller, told the teller that money was needed to 'feed the hungry bears,' held out a large burlap sack for the teller to fill, and left after the teller did as she was told. Defendant claims to have been in another city when the crime was committed. The prosecution calls a witness to testify that on two occasions in the past month, he served as lookout for Defendant when Defendant committed bank robberies in the same city using the method just described." Suppose Defendant denies committing the two previous robberies and objects to admission of the evidence. How should the court rule?

The court should decide whether there is evidence sufficient to support a finding that Defendant robbed the two other banks. If there is (or if the prosecution represents that it will produce such evidence), the court should allow the evidence to go to the jury, along with all other admitted evidence.

Negligence action by Plaintiff against Defendant, a railroad company, following a collision between Plaintiff's vehicle and Defendant's train. Plaintiff was driving her vehicle when she approached a railroad crossing. Plaintiff claims that the gate was not down and the light was not flashing, so she started to cross the tracks. Defendant denies that the gate and signal were not working. To prove that the gate and signal were not working, Plaintiff wishes to present evidence that on two occasions in the year before her accident, drivers narrowly avoided collisions at the same crossing because the gate and signal were not operating. Defendant objects. How should the court rule?

The court should probably overrule the objection. As long as the conditions of the prior accidents were sufficiently similar to those encountered by Plaintiff, the evidence carries sufficient probative value to overcome any dangers of unfair prejudice, distraction of the jury, or undue consumption of time.

Prosecution of Defendant for bank robbery. The perpetrator entered the bank wearing a Smokey the Bear costume, approached a teller, told the teller that money was needed to "feed the hungry bears," held out a large burlap sack for the teller to fill, and left after the teller did as she was told. Defendant claims to have been in another city when the crime was committed. The prosecution calls a witness to testify that on two occasions in the past month, he served as lookout for Defendant when Defendant committed bank robberies in the same city using the method just described. Defendant does not deny committing the other robberies, but objects to admission of the evidence on the ground it violates the character evidence rule. How should the prosecutor respond? How should the court rule? Same case. Defendant argues that because the charged and uncharged crimes are so similar, there is a great danger that the jury will convict Defendant for being a bank robbing type, without finding whether Defendant committed the charged robbery. As a result, Defendant argues, the court should exclude the evidence as too prejudicial. How should the court rule?

The situation is somewhat ironic. In this situation, the same fact that makes the evidence potentially quite prejudicial (the similarity of the crimes) is also the fact that makes the evidence more probative for its permissible purpose. In all likelihood, the court will reject Defendant's argument and admit the evidence.

What restrictions do Michelson, and Rules 404-405, place on the defendant's right to prove innocence with character evidence?

There are two main restrictions: (1) The evidence must concern a "pertinent trait" of defendant' s character . Defendant's possession of the particular character trait must make it less likely that defendant would commit the charged crime. (2) The evidence may only take the form of reputation and opinion. In addition, the witness testifying in either form must possess the necessary knowledge to support the testimony. In the case of reputation, the witness must have sufficient familiarity with defendant's reputation in the relevant community. In the case of opinion, the witness must know defendant personally, and that knowledge must be based on a sufficient amount of contact to form a reliable opinion.

Negligence action arising from an intersection collision. Plaintiff claims that Defendant ran the stop sign. To prove that Defendant did so, Plaintiff calls Witness to testify that for the past year, she has ridden with Defendant almost every day to school, that they always cross the intersection in question, and that Defendant almost always fails to stop at the stop sign. Defendant objects on grounds Witness's testimony is inadmissible character evidence. How should the court rule? Same case. Suppose Witness's testimony will be that she has ridden with Defendant three times, and that Defendant failed to stop at the stop sign all three times. Again, Defendant objects on grounds Witness's testimony is inadmissible character evidence. How should the court rule?

This is a close case, but three times might not be enough to establish a habit. On the other hand, the evidence is very specific; all three instances involved the same stop sign. This might create particularly strong inference that Defendant always (or virtually always) fails to stop at this stop sign. If the court emphasizes the fact that all instances involved the same stop sign, the court is more likely to characterize the evidence as habit and admit it.

Does the court still retain the authority to forbid the prosecution from asking about specific instances of conduct on cross-examination? If so, why?

Yes. The court still may sustain an objection under Rule 403 if it finds that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

If the prosecution chooses to call its own witness to "rebut" the defendant's character evidence, may defendant raise specific instances of conduct on cross-examination of that witness?

Yes. Thus, if defendant calls a witness who testifies to defendant's excellent community reputation for peacefulness, and the prosecution calls another witness to testify to defendant's community reputation for being a violent person, defendant may cross-examine the prosecution's witness by asking a question such as, "Did you ever hear that two years ago, defendant was taunted by a classmate who hurled despicable racial slurs at him, but that defendant just walked away?" The same restrictions that apply to the prosecution's reference to specific instances of conduct would apply to the defendant as well.

what is character evidence? (R)

what is character evidence? This leads to our definition of character evidence. It is evidence that says something general about a person and carries with it an ethical or moral judgment. Because the evidence makes a general statement about a person, it invites jurors to draw inferences about how the person acted in connection with the events in question. In other words, it is a type of "propensity" evidence (though it is not always used that way). And because the evidence conveys a moral or ethical judgment, jurors are more likely to be diverted from the issues and focus on whether the person in question is "good" or "bad." It also helps if students can understand that character evidence is not the only kind of "propensity" evidence. Habit, for example, is also propensity evidence, and the evidence rules treat habit differently than character. Evidence that a person has a tendency to act in a certain way because of a physical or mental disorder is also propensity evidence. Arguably, this evidence also is distinct from character evidence, and thus is not subject to the rules governing character. But we will see that this distinction is somewhat controversial and difficult to apply.

why does the law limit the admissibility of character evidence? (R)

why does the law limit the admissibility of character evidence? Here is what you might say: Assume that, in a murder prosecution, the government offers evidence that the defendant has a reputation for being cruel and violent. The evidence is relevant because a person with a propensity toward cruelty and violence probably is more likely to be willing to commit a homicide than is a person without those traits. But even though the evidence is relevant, we limit its admissibility because there are at least two ways it might cause unfair prejudice. First, the evidence might divert jurors from the question of whether defendant committed the crime charged because, once having heard that the defendant is cruel and violent, jurors may be willing to find him guilty simply because he is a bad person. Second, even if jurors remain focused on the question of whether defendant committed the crime, they might give too much weight to the evidence that he is cruel and violent. This is because, while it is commonly assumed that people usually act "in character," psychologists have shown that human conduct is the product of multiple factors, especially the individual context in which a given act is committed. Students should also understand that the notion that one should not be tried for who she is, but for what she has done is a core value of our justice system.