Evidence: Character Evidence
Rule 404(b): Lack of Accident
"brides in the bath" case. Three wives "accidentally" drowned in the bathtub at home. Too much of a coincidence.
Rule 404(b): Knowledge
Defendant charged with making a pipe bomb used to kill a victim. Defends on grounds he doesn't have the technical know-how to make a bomb. Evidence that he had used a similarly-constructed bomb in an earlier killing admissible to show opportunity ("technical know-how").
Rules 412 - 415 application
If you get one of these cases, all the rules are turned 180 degrees. The victim's past off the table, unless it comes in to show presence of semen from someone else or consent. Except for that, it can't come in
Substantive Character Evidence
o When a trait of a person's character is offered to prove a disputed issue in the case, evidence of that character trait is substantive. Character in issue: when a person's character is an element of proof under the substantive law; Ex. - defamation, negligent entrustment: ALLOWED UNDER 404, 401-403 Circumstantial use of character evidence: DISALLOWED UNDER 404(a). However, there are exceptions to this general rule. • Three ways to present substantive character evidence o Reputation testimony o Opinion testimony o Specific instances of conduct
Rule 405: Methods of Proving Character
(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. o So, when it is admissible, character witnesses can only talk about reputation or opinion. On cross, they can be asked about specific instances. (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. o Only in negligent hiring, negligent entrustment, defamation - you can use all three. o Three ways: Witness can give testimony of opinion of character Or reputation in the community (collective opinion) Or specific instances of conduct, specific acts that happened in the past to show character - but rules are tricky bc sometimes you can't use specific instances! But other times you can use all three
Rule 404: Character Evidence; Crimes or Other Acts
(b) Crimes, Wrongs, and Other Acts (Must give advance notice) o (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. o (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 ct, for good cause, excuses lack of pretrial notice Preponderance of the evidence controls on 404(b) and judge does not have to satisfy himself in her mind that the act occurred, just has to say is there evidence that reasonable jury could conclude that the act occurred. Even if trial judge has doubts, judge lets the jury decide.
Rule 415: Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
- (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.
Rule 414: Similar Crimes in Child Molestation 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: o (1) "child" means a person below the age of 14; and o (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).
Rule 404(b): Intent
D claims she participated in a bank robbery because she was coerced by her captors. Evidence that D, when left alone in the getaway car, fired a shot to help her cohorts escape. Admissible because it shows D's intent at time of earlier bank robbery.
Rule 412: Sex-Offense Cases: The victim's sexual behavior or predisposition
- (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: o (1) Evidence offered to prove that a victim engaged in other sexual behavior; or o (2) Evidence offered to prove a victim's sexual predisposition. Victim's past is taken of the table, but there are some exceptions, see below - (b) Exceptions. o (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 cxnal rights. o (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. Reverse 403 balancing! - (c) Procedure to Determine Admissibility. o (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. o (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.
Rule 404(b): Identity
1) D charged with bank robbery. Evidence that earlier in the day of the bank robbery, the defendant stole an automobile and that same automobile was used as the getaway car in the bank robbery. Admissible to show identity. Not trying to show that he is a thief, so he is a bad person, trying to show identity. 2) "Signature Crimes." D robs bank wearing orange ski mask, grey sweatshirt, black gloves, using a demand note written on an old-fashioned typewriter. Evidence of earlier bank robbery by defendant wearing identical garb and using similar demand note admissible to show identity.
Rule 404(b): Motive
D charged with murder of a man. Prosecution wants to show evidence of affair with wife of murder victim admissible to show motive. Not offering to show character of bad person, he is offering to show motive.
Rule 404(b): Lack of Mistake
D charged with murder said gun fired accidentally because he was unfamiliar with guns. Evidence that D earlier used a gun in a robbery is admissible because it shows D was familiar enough with operation of guns to use in a robbery.
Rule 406: Habit; Routine Practice
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. o Rule tells us if you can prove someone's habit, then you can say they acted with. Dichotomy b/w habit (it is going to come in, so if trying to get something in, argue habit) and character (not going to come in.) Always drives the speed limit - more like character. Always locks the front door or never locks the front door - habit. Always make sure you have money in your account before writing a check - probably not habit.
11 Rules of Substantive Character Evidence
Rule 1: The circumstantial use of character evidence is not permitted in a civil case, when character is not in issue - 404(a). Rule 2: When character evidence is in issue in a civil case, evidence of the pertinent character trait is admissible and may be proven by reputation, opinion, and specific instances of conduct. (EXCEPTION TO THE RULE in cases of DEFAMATION, NEGLIGENT HIRING, ETC.) Rule 3: In a criminal case, the prosecution may not offer character evidence concerning the defendant in its case in chief. John may have the worst reputation in the world, but prosecution in its case in chief (prosecution gets to go first), they can not bring out evidence to show D was a bad man, even indirect ways by using a nickname.) Rule 4: In a criminal case, character evidence of a pertinent trait of the defendant is admissible if offered by the defendant, after which the state may offer rebuttal evidence. Proof may be made only by reputation and opinion. (Did the defendant open the door? P's can't argue case in chief.) Rule 5: In a criminal case, character evidence of a pertinent trait of a victim is admissible if first offered by the defendant, after which the state may offer rebuttal evidence as to the victim as well as on the same trait as the defendant. Proof may be made only by reputation and opinion. (o A lot of this rule is in state court with who started the fight in a murder or assault case. If you want to talk about the victim's character, prosecution can't do it, but if D brings out testimony that victim was aggressive and violent, but if he does, prosecution can come back an offer rebuttal testimony that victim was peaceful and calm, AND AS TO THE DEFENDANT! So, D will open door to testimony about the victim's character and his own character! Put in by victim's rights organizations.) Rule 6: In a homicide case, if the defendant offers any evidence that the deceased was the first aggressor, then the prosecution may offer rebuttal evidence of the peacefulness of the victim. Proof may be made only by reputation and opinion. Rule 7: In a criminal case, when character is an essential element of a charge, claim, or defense, proof may be by reputation, opinion, and specific instances of conduct. (never comes up! SKIP!) Rule 8: Any character witness may be cross-examined concerning that witness's knowledge of specific instances of pertinent bad acts committed by the person whose character that witness has endorsed; the cross-examiner must have good faith proofs that the acts occurred. Rule 9: Specific instances of conduct are admissible to prove intent, motive, plan, design, or any purpose other than character, so long as the probative value of the evidence as to its not-for-character purpose is not substantially outweighed by the risk of prejudice, confusion, and undue delay. This is 404(b). Rule 10: Habit. Evidence is admissible to show that conduct conformed to habit. Rule 11: The rules on character and bad act evidence are applied differently in cases involving rape or sexual abuse. Evidence of the victim's prior sexual activity is more strictly regulated, while evidence of the defendant's prior bad acts is more permissively treated.
Character or Habit?
The more particular, reflexive and automatic the act, the more it is habit. The more thought and planning required for the act, the less likely it is habit. Courts have held that the practice of losing your temper and going out of control every time coming into contract with a police officer was a habit. Anderson would not have ruled habit! That is too general - not time and place specific - not Pavlovian.
Impeachment Use of Character Evidence
o Impeachment has nothing to do with the underlying issues disputed in the case. Rather impeachment is an attempt to discredit the witness or the witness's testimony so that the judge or jury will find it unworthy of belief. o Example: prosecution puts on a witness in D's murder trial and the witness has several convictions for perjury. Evidence of the convictions has nothing to do with the issues in the criminal trial for murder, however, defense counsel would want to introduce those perjury convictions to impeach the witness
Rule 404: Character Evidence; Crimes or other Acts
o (a) Character Evidence. (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 evidence to rebut it; • (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: o (i) offer evidence to rebut it; and o (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. (we will take this up later) • (b) Crimes, Wrongs, or Other Acts. o (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. o (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.
