Character, Habit and Routine Practice: FRE 404-406, 412-415

Essential Elements of Character

(1) Defamation (evidence of P's character to prove or disprove truth of what D said about P's character); (2) Negligent entrustment (i.e., D's awareness of the entrustee's bad character); (3) Child custody (to prove character/fitness of parents); (4) Insanity defense (where D claims lack of volitional control as a result of a mental defect); (5) Entrapment (to prove or disprove that D was predisposed to commit the crime); (6) Character of the decedent in wrongful death cases (when computing damages for emotional and economic loss to survivors); (7) Self-defense (regarding victim's knowledge of attacker's violent nature).

Exceptions to Character Evidence Under 404(a)(2)(A-B)

FRE 404(a)(2)(A)- A criminal defendant may introduce evidence of his own (favorable) character trait if pertinent, and if he does so, the prosecution may then rebut that evidence. FRE 404(a)(2)(B)- A criminal defendant may introduce evidence of pertinent character trait of the alleged victim, and if he does so, the prosecution may then rebut the evidence and also introduce evidence of the defendant's same trait.

Exceptions to Character Evidence Under 404(a)(2)(C-D)

FRE 404(a)(2)(C)- In homicide cases, if the defendant introduces evidence that the victim was the aggressor, the prosecution may introduce evidence of the victim's trait of peacefulness. FRE 404(a)(3)- Either side may introduce character evidence to impeach the credibility of a witness (or rehabilitate the witness's credibility once it's been attacked), as provided in FRE 607, 608, and 609.

Other Purposes for Person's Crime, Wrong or Other Acts Offered

FRE 404(b)(1) lists nine specific examples of other purpose for which evidence of person's crime, wrong or act may be offered: (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; (8) absence of mistake; and (9) lack of accident.

Evidence that a care stolen in another county was used two weeks later in a bank robbery is inextricably interwined evidence falling outside of the scope of Rule 404(b)(1)

False. Evidence that a car used in a bank robbery had been stolen two weeks before is not "inextricably intertwined" in the sense that it is so linked together in point of time and circumstance with the crime charged that one cannot be fully shown without proving the other. Rather evidence of the earlier car theft is crimes, wrongs, or other acts evidence admissible under Rule 404(b)(2) for the purpose of establishing plan and preparation.

For other crimes, wrongs, or acts evidence to be admissible, the proponent must present clear and convincing evidence of the events existence.

False. For other crimes, wrongs, or acts evidence to be admitted, the proponent must introduce evidence sufficient when viewed most favorably by a reasonable jury to permit a finding that the existence of the other crime, wrong, or act is more probably true than not true, Rule 104(b); clear and convincing evidence is not required.

Rule 413(a) states that "(a) in a criminal case in which the defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered in any matter to which it is relevant which means that Rule 403 is inapplicable.

False. Rule 403 governs the admissibility of evidence of the defendant's commission of another offense or offenses of sexual assault when offered in a criminal case in which the defendant is accused of an offense of sexual assault.

If the accused offers character evidence in the form of opinion testimony that his character for peacefulness was good, the prosecution may offer character evidence in the form of specific instances of conduct and reputation testimony that the accused character for peacefulness was bad.

False. Rule 404(a)(2)(A) and Rule 405(a) provide that the prosecution in rebuttal may offer evidence in the form of reputation or opinion testimony as to the character of the defendant for unpeacefulness but may not introduce evidence of specific instances of conduct to prove the accused's character for unpeacefulness.

Rule 404(b)(2) lists all of the other purpose for which other crimes, wrongs, or other acts of evidence are admissible.

False. Rule 404(b)(2) provides that while evidence of crimes, wrongs, or other acts is not admissible to prove the character of a person in order to show action in conformity therewith, it may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

The presence of an eyewitness makes habit testimony of an individual inadmissible.

False. Rule 406 provides: 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.

In a civil case, evidence of sexual predisposition of an alleged victim under Rule 412 is never admissible.

False. Rule 412(b)(2) provides that in a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under the Federal Rules of Evidence and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

At common law, on cross-examination a reputation witness was cross-examined as to specific instances of conduct of the principle witness starting with the words, "Are you aware."

False. The proper question to the reputation witness was, and still is, "Have you heard?"

The prosecution in its case in chief can offer option testimony that the pertinent character of the victim for honesty was good.

False. The prosecution may offer character evidence in the form of reputation or opinion testimony as to a pertinent trait of character of the victim only to rebut character evidence in the form of reputation or opinion testimony as to the same pertinent trait of character of the victim offered by an accused, Rule 404(a)(2)(A).

The accused may offer evidence of a pertinent trait of his character through reputation testimony and specific instances of conduct.

False. With respect to reputation testimony, Rule 405(a) provides that in all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. Rule 404(b)(1) provides, moreover, that evidence of crimes, wrongs, or other acts is not admissible to prove the character of a person in order to show action in conformity therewith.

An offer to stipulate by the accused greatly reduces the probative value and thus virtually assures that the other crimes, wrongs, or acts evidence will be ruled inadmissible under Rule 403 when offered by the prosecution.

False.Absent extraordinary circumstances, the prosecution is entitled to present otherwise admissible evidence for the fair and legitimate weight introduction of the evidence could have on the trier of fact even though the defendant has offered to stipulate as to the matter for which the evidence is relevant. As stated by the United States Supreme Court in Old Chief v. United States, 519 U.S. 172, 189, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)

Evidence constituting the charged crime itself is subject to the notice requirement of Rule 404( b)( 2).

False.Evidence which comprises the crime for which the accused in on trial, whether or not the crime of conspiracy, is offered as direct evidence of the crime and thus not as "other" crimes, wrongs, or acts evidence governed by Rule 404(b). Accordingly, the notice requirement of Rule 404(b)(2)(A) and (B) would be inapplicable.

If the accused offers character evidence in the form of reputation testimony as to the bad character of the victim for the pertinent trait of peacefulness, then the prosecution can offer opinion character testimony that the accused character for peacefulness was bad.

True.

Character forms an essential element in a litigation alleging negligent hiring and evidence of specific instances of conduct in admissible to prove character when character is an essential element.

True. Negligent hiring requires a finding that the person hired possesses a particular character trait, the possession of which makes it negligent to hire the individual for the particular job under consideration. Character is thus an essential element of a claim for negligent hiring. In cases in which character is an essential element of a claim, Rule 405(b) provides that proof may be in the form of specific instances of the person's conduct in addition to character 242 evidence in the form of testimony as to reputation or testimony in the form of an opinion.

Proof of habit of an individual may be in the form of opinion testimony.

True. Proposed rule 406(b), not enacted but reflective of the common law, provided: Method of proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

Character evidence of carelessness is inadmissible in a civil case.

True. Rule 404(a)(1) provides that evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion in a civil case.

Turning back of an odometer, not illegal when done by the defendant, can nevertheless qualify as other crimes, wrongs, or acts evidence.

True. Rule 404(b)(2), crimes, wrongs, or other acts, includes specific instances of conduct which are not criminal.

On cross-examination of a character witness whether testifying in the form of reputation or opinion, inquiry is allowable into relevant specific instances of conduct.

True. Rule 405(a) provides: (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.

When character evidence is an essential element in a case, specific instances of conduct become admissible along with reputation and opinion testimony.

True. Rule 405(b) provides: 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.

Mailing of letters will ordinarily qualify as a routine practice of an organization.

True. Rule 406 provides: 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.

Evidence in the form of reputation or opinion as to an alleged victim's character with respect to sexual matters is not admissible in a criminal case.

True. Rule 412(a)(2) provides that evidence offered to prove any alleged victim's sexual predisposition (character) is not admissible in any civil or criminal proceeding involving alleged sexual misconduct.

In a criminal case in which the defendant is accused of child molestation, evidence of other crimes, wrongs, or acts committed by the defendant is admissible to prove the character of the defendant in order to show action in conformity therewith.

True. Rule 414(a) provides that in a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

A criminal defendant is entitled to show that an alleged victim's pregnancy was the result of sexual behavior with another person.

True.Rule 412(b)(1)(A) provides that in criminal cases evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence is admissible.

Modus operandi and common design are not synonymous.

True.The State (and, indeed, some of the authorities) have used "common design" and "modus operandi" interchangeably 241 but the concepts are quite distinguishable. A common design refers to a larger criminal scheme of which the crime charged is only a portion. Modus operandi means, literally, "method of working," and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer. See generally McCormick, Evidence sec. 190, at 448-49 (2d ed. 1972). A common design is frequently relevant to show the motive for the crime charged. Modus operandi is most useful in showing that the accused is the perpetrator of the crime charged.

A limiting instruction should accompany evidence admitted pursuant to Rule 404(b)(2).

True.Where evidence of crimes, wrongs, or other acts is admitted under Rule 404(b)(2), the jury should be given a limiting instruction, Rule 105, to the effect that they are not to consider the evidence as going to the character of the accused in order to show action in conformity therewith but only as going to the particular other purpose for which offered such as motive, identity, etc. However, failure of the court to give such an instruction sua sponte is unlikely to be considered plain error, Rule 103(e).

Opinion and Reputation

the general rule is that when evidence of character trait is admissible, it may be proved by (and only by) reputation or opinion evidence. FRE 405(a).

Mercy Rule

the rule provides that in criminal cases, the defendant may offer pertinent evidence of his own character or character trait (typically, though not necessarily, a "good trait"). As a rule is stated in the FRE, "in a criminal case: (A) a defendant may offer evidence of defendant's pertinent trait of character." FRE 404(a)(2).

Character in Issue

the situation colloquially called character in issue is labelled more formally by the FRE as the situation here a character is "an essential element of a charge, claim, or defense." FRE 405(b).

Specific Acts

there are few situations in which evidence of specific past acts by a person may be used to prove that person's character trait: In the core situation in which a character witness gives reputation or opinion testimony on direct to prove a person's character trait, the court has discretion to then allow the party cross-examining that witness to "make inquiry into relevant specific instances of the person's conduct." FRE 405(a). If the person's character trait is an "essential element of a charge, claim or defense," the trait may be proved by "relevant specific instances of the person's conduct." FRE 405(b). "Another purpose" under FRE 404(b)(2), but not conformity therewith. Such as motive opportunity or plan.

Character Evidence in Civil Cases

there are two situations where character evidence is admissible in civil cases. FRE 404(b)- Character evidence is admissible in civil cases when character is directly in issue in the case. FRE 404(a)(3)- Character evidence is admissible when character evidence is offered to impeach the witness's credibility or to rehabilitate ta witness's credibility when it has been attacked. FRE 608, 609.

Note on Character Evidence in Civil Cases

Apart from these two situation, in civil cases evidence of a person's character trait is inadmissible to show that on a particular occasion, the person acted in accordance with that trait. FRE 404(a)(1).

There are three types of evidence that theoretically could be used to establish character:

1. Specific Acts 2. Opinion 3. Reputation

FRE 404(a)(2)(A)

A criminal defendant may introduce evidence of his own (favorable) character trait if pertinent, and if he does so, the prosecution may then rebut that evidence.

FRE 404(a)(2)(B)

A criminal defendant may introduce evidence of pertinent character trait of the alleged victim, and if he does so, the prosecution may then rebut the evidence and also introduce evidence of the defendant's same trait.

Rationale of Character Evidence

Character evidence has limited probative value because people do not always act in accordance to with their character. Further, courts and legislatures fear that juries will be unduly swayed by such evidence that they will give the character evidence more weight than its small probative value deserves.

FRE 404(b)

Character evidence is admissible in civil cases when character is directly in issue in the case.

FRE 404(a)(3)

Character evidence is admissible when character evidence is offered to impeach the witness's credibility or to rehabilitate ta witness's credibility when it has been attacked. FRE 608, 609.

FRE 404(a)(3)

Either side may introduce character evidence to impeach the credibility of a witness (or rehabilitate the witness's credibility once it's been attacked), as provided in FRE 607, 608, and 609.

FRE 404(a)(1)

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.

FRE 406

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.

Habit Evidence

Habit evidence describes a person's regular response to a repeated situation. Habit is usually proved by witnesses who testify to specific instances of the habit. Alternatively, a habit might be proved by having a witness testify that in his opinion, the person had the habit.

FRE 404(a)(2)(C)

In homicide cases, if the defendant introduces evidence that the victim was the aggressor, the prosecution may introduce evidence of the victim's trait of peacefulness.