THEMIS EVIDENCE - RELEVANCE

b. Circumstantial evidence

Evidence that tends to indirectly prove a factual proposition through inference from collateral facts is circumstantial. An eyewitness who testifies that, moments before entering a room, she heard a shot, and upon entering the room saw the defendant standing over the body of the victim holding a smoking gun is circumstantial evidence that the defendant committed a homicide.

a. Inadmissible to prove conforming conduct

In a civil case, evidence of a person's character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. Fed. R. Evid. 404(a)(1). Example: A plaintiff cannot introduce evidence that the defendant is a reckless driver to prove that the defendant drove recklessly on the day in question. Evidence concerning past sexual assault or child molestation by a defendant in a case in which the claim for relief is based on the defendant's sexual misconduct is admissible. Evidence concerning the past sexual behavior of a victim of sexual misconduct (e.g., rape) is admissible in limited circumstances (see § V.B.6. Sexual Conduct, infra).

Sufficiency Distinguished:

To be relevant, evidence need not, by itself, establish an element that a party must prove (e.g., the death of an individual in a homicide prosecution) or serve to refute such an element (e.g., a defendant's lack of a duty in a negligence action). The test of sufficiency of a party's evidence focuses on all evidence submitted by a party and admitted by the court. By contrast, under the test of relevancy, evidence is admissible even if it is only a single brick that is part of a wall of evidence establishing a party's position. Fed. R. Evid. 401, Notes of Advisory Committee, referring to Professor McCormick's famous statement, "A brick is not a wall."

5. Laying a Foundation

Various types of evidence are admissible subject to the existence of a necessary predicate (i.e., a foundation), such as the authentication of tangible evidence. The failure of the proponent of the evidence to establish that foundation may be challenged by an objection for lack of proper foundation.

c. Cross-examination of character witness

When a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying. Fed. R. Evid. 405(a).

1. Advance Notice

When a criminal defendant requests, the prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. Such notice must generally be given before trial, but it can be given during trial when the court, for good cause, excuses the lack of pretrial notice. Fed. R. Evid. 404(b)(2).

Non-propensity use:

When a defendant's bad act is not used to show the defendant's criminal propensity but for another purpose (e.g., motive, identity), such instance of conduct may be admissible for that purpose.

a. Civil cases

When character evidence is admissible as evidence in a civil case (i.e., evidence that is an essential element of a claim or defense), it may be proved by specific instances of a person's conduct as well as either by testimony about the person's reputation or by testimony in the form of an opinion. Fed. R. Evid. 405(b).

3. Methods of Proving Character

When character evidence is admissible, it may always be proved by testimony about the person's reputation or in the form of the witness's opinion. Fed. R. Evid. 405(a). For use of specific instances of conduct, see § II.C.2. Introduction of Specific Acts as Character Evidence, infra.

Essential element of the crime charged:

When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime. Fed. R. Evid. 405(b).

3. Relevance Dependent on Existence of Fact

When the relevance of evidence depends upon whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof is introduced later. Fed. R. Evid. 104(b). In making its determination that sufficient evidence has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence; the court itself is not required to find that the conditional fact exists by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681 (1988).

1. Civil Cases

1. Civil Cases

1. Direct and Circumstantial Evidence

1. Direct and Circumstantial Evidence

2. Criminal Cases

2. Criminal Cases

2. Introduction of Specific Acts as Character Evidence

2. Introduction of Specific Acts as Character Evidence

1) By defendant—victim's bad character

A criminal defendant may introduce reputation or opinion evidence of the alleged victim's character when it is relevant to the defense asserted. Fed. R. Evid. 404(a)(2)(B). (Note: The introduction of evidence of the character of an alleged victim of sexual misconduct in a criminal case, however, is subject to significant limitations (see § V.B.6. Sexual Conduct, infra).) Example: A defendant is charged with assault. The defendant may offer evidence of the alleged victim's character trait of violence to support a claim of self-defense by showing that the alleged victim was the aggressor.

2) By defendant—defendant's good character

A defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged. Example 1: A defendant is charged with brutally murdering his wife. The defendant may present evidence of his peaceable nature. The defendant's character evidence must be pertinent to the crime charged. Example 2: A defendant is charged with embezzling money from her employer. The defendant may not present evidence of her peaceable nature. Proof of good character offered by the defendant must be in the form of reputation testimony or opinion testimony. Reputation evidence is defined as a defendant's reputation in the community. "Community" includes people with whom the defendant engages on a regular basis.

3) Defendant "opens the door"

Although the prosecution cannot introduce evidence of the defendant's bad character, the defendant makes his character an issue in the case if he offers evidence of his good character. When the defendant "opens the door," the prosecution is free to rebut the defendant's claims by attacking the defendant's character. Fed. R. Evid. 404(a)(2)(A). Defendant as witness: The defendant does not "open the door" to character evidence merely by taking the stand, but as a witness, the defendant is subject to impeachment. In addition, the defendant "opens the door" for the prosecution to introduce evidence of his bad character by introducing evidence of the victim's bad character. The prosecution's evidence regarding the defendant must relate to the same character trait (e.g., violence) that the defendant's evidence about the victim did. Fed. R. Evid. 404(a)(2)(A).

4. Impeachment

Character evidence is admissible for impeachment purposes. Character evidence about the witness may be introduced to show that the witness is not a person whose testimony should be believed. In such instances, the witness's character for untruthfulness is relevant. When permitted, the witness's testimony may be supported by testimony as to the witness's character for truthfulness. Fed. R. Evid. 404(a)(3). See § III.B. Impeachment, infra.

b. Character at issue

Character evidence is admissible, however, when character is an essential element of a claim or defense, rather than a means of proving a person's conduct. Character is most commonly an essential element in defamation (character of the plaintiff), negligent hiring or negligent entrustment (character of the person hired or entrusted), and child-custody cases (character of the parent or guardian). Fed. R. Evid. 404(b); 405.

CHARACTER EVIDENCE

Character evidence, which is generalized information about a person's behavior—such as information that the defendant is a criminal, a bad parent, or an inattentive driver—is generally inadmissible.

a. Direct evidence

Direct evidence is identical to the factual proposition that it is offered to prove. An eyewitness who testifies that she saw the defendant shoot the victim dead is an example of direct evidence that the defendant committed a homicide.

Matter of degree:

Evidence may be admissible even if the danger of prejudice or other factors outweigh the probative value, so long as the danger does not do so substantially.

HABIT EVIDENCE

Evidence of a person's habit or an organization's routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. A habit is a person's particular routine reaction to a specific set of circumstances. Example: A person drives the same route to work and parks in the same spot every day. Habit evidence may be admitted without corroboration and without an eyewitness. Fed. R. Evid. 406.

GENERAL CONSIDERATIONS

GENERAL CONSIDERATIONS

4. Admission of Irrelevant Evidence—Curative Admission

Generally, irrelevant evidence is inadmissible. However, when a court admits evidence that is not relevant, the court may permit the introduction of additional irrelevant evidence to rebut the previously admitted evidence. Known as a curative admission, such evidence is admitted when necessary to remove unfair prejudice. The failure of a party to object to the admission of the initial irrelevant evidence is a factor to be considered in determining whether the party was unfairly prejudiced by it. United States v. Hall, 653 F.2d 1002 (5th Cir. 1981); Crawford v. United States, 198 F.2d 976 (D.C. Cir. 1952).

2) By prosecution—victim's good character

Generally, the prosecution may offer rebuttal evidence of the alleged victim's good character only after the defendant has introduced evidence of the alleged victim's bad character. Fed. R. Evid. 404(a)(2)(B). Example: A defendant is charged with assault. The defendant presents evidence of the alleged victim's character trait of violence to support a claim of self-defense. The prosecution may then rebut the defendant's evidence with evidence of the alleged victim's character trait of peacefulness. Note: The prosecution may also offer evidence of the defendant's character trait of violence. In a homicide case, the prosecution may also offer evidence of the alleged victim's trait for peacefulness to rebut evidence that the alleged victim was the first aggressor. Fed. R. Evid. 404(a)(2)(C).

b. Criminal cases

Generally, when character evidence is admissible as evidence in a criminal case (e.g., evidence of good character introduced by the defendant), specific instances of a person's conduct are not admissible. Character must be proved by either reputation or opinion testimony. Fed. R. Evid. 405(a).

EXAM NOTE:

Habit is more specific than character evidence. In exam questions, words like "always" or "every time" generally refer to habit, whereas "often" or "frequently" are more likely to imply character evidence.

BAD ACTS

In addition to general evidence of a person's character (or character trait), evidence of a bad act is not admissible to prove a person's character in order to show that the person acted in accordance with that character on a particular occasion. Fed. R. Evid. 404(b)(1). Example 1: A driver is sued to recover for injuries inflicted on the plaintiff allegedly due to the driver's negligent failure to stop at a stop sign. The plaintiff cannot introduce testimony by a witness that the driver failed to stop at the same stop sign the day before the accident in question for the purpose of proving that the plaintiff failed to stop at the stop sign on the day of the accident. Although a defendant's crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(2). Example 2: A defendant is charged with murder. Evidence that the defendant was previously convicted of robbery is likely admissible if the murder victim was the prosecutor on the robbery case against the defendant. Such evidence establishes the defendant's motive for killing the victim.

1) By prosecution—defendant's bad character

In general, the same rule that applies in a civil action applies to the prosecution in a criminal case. The prosecution is not permitted to introduce evidence of a defendant's bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. Fed. R. Evid. 404(a)(1). Example: A defendant is charged with brutally murdering his wife. The prosecution may not present evidence of the defendant's violent nature.

Rule 403:

Keep in mind that evidence of a bad act that is otherwise admissible is especially subject to challenge under Federal Rule 403, which permits the court to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice (see §II.A.2. Exclusion of Relevant Evidence, supra).

MIMIC evidence:

This type of evidence is sometimes referred to as "MIMIC" evidence (Motive, Intent, absence of Mistake, Identity, or Common plan), but it is important not to treat this list as all-inclusive. Subject to the other restrictions on the admissibility of evidence (e.g., relevancy, Rule 403 exclusion), a defendant's bad act may be introduced for any purpose so long as that purpose is not to prove that, because the defendant had a propensity to commit crimes, the defendant committed the charged crime.

RELEVANCE

RELEVANCE

2. Exclusion of Relevant Evidence

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. This exclusion is often denominated by the applicable rule; that is, it is referred to as a "Rule 403" exclusion. Fed. R. Evid. 403.

Conviction without direct evidence:

There is no rule that requires the presentation of direct evidence in order to convict a defendant. In other words, a defendant can be convicted solely upon circumstantial evidence.

Compare direct evidence:

While it is sometimes said that direct evidence is better than circumstantial evidence, circumstantial evidence may have greater probative value. For example, testimony as to the identity of a thief based on a fleeting glimpse by an eyewitness with poor vision may not be as persuasive as testimony that the stolen item was found in the defendant's home.

a. Defendant's character

a. Defendant's character

b. Victim's character

b. Victim's character

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Fed. R. Evid. 402. Evidence is relevant if:

i) It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative); and ii) The fact is of consequence in determining the action (i.e., material). Fed. R. Evid. 401.