character evidence CALI

FRE 406

"Evidence of the habit of a person . . . is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit." -Among the examples of "habit" provided in the advisory committee's note is "giving the hand-signal for a left turn."

true or false: character is an essential element in a negligence action?

FALSE

true or false: under the Federal Rules of Evidence, character evidence may be used as an evidentiary fact in civil cases

FALSE

testimony shows a distinctive operandi, so because the testimony tends to earmark the crime as that of the defendant, many judges would admit it on the issue of identity per

FRE 404(b)

In its rebuttal case, the prosecution offers testimony that a year before the murders, Lizzie was convicted of attempted murder when she fired a fusillade of shots into a neighbor's house because the neighbor was holding a loud party. The crime was punishable by a maximum sentence of 25 years. Should the testimony be admitted?

NO inadmissible to show Lizzie has a violent character

In its case in chief, the prosecution offered testimony by a neighbor who had known Lizzie for years that in his opinion Lizzie had an extremely violent disposition. Should this testimony be admitted?

NO no relationship to truthfulness

The prosecutor argues that evidence that Lizzie never had fights or quarrels with her neighbors is inadmissible because it is evidence about Lizzie's conduct, not her reputation or the witness's opinion about her character. In light of this argument, please re-answer the question: Is the testimony that Lizzie never had any fights or quarrels with her neighbors admissible?

NO the testimony is inadmissible, FRE 405(a)

Defense counsel argues that if the only relevance of this testimony is to show propensity to sell heroin, it is not admissible because it is evidence of specific conduct offered to show a trait of character. The character evidence should be in the form of opinion or reputation testimony, not in the form of testimony about specific conduct. Is this argument against admission of the testimony correct?

NO while it is true that normally character evidence must be cast in the form of opinion or reputation testimony, Rule 405(b) permits proof of specific instances of conduct when a trait of character is an essential element of a charge, claim, or defense

In cross-examination of the prosecution witness Sullivan, defense counsel asked Sullivan if it was true that she had been expelled from high school because she was pregnant. Is the question permissible?

NO the question is not permissible, as pregnancy has no relationship to truthfulness

civil defendants are rarely permitted to

offer character evidence that he did not commit the crime

criminal defendants are always permitted to

offer character evidence that he did not commit the crime

The prosecution rested after introducing enough evidence to support a verdict. The defense called an alibi witness. On cross-examination, the prosecutor asked the witness to admit that he was convicted of aggravated assault 9 years previously. (Assume that aggravated assault is punishable by five years in prison, and that the witness actually was sentenced to probation with no confinement.) Should the judge sustain an objection to the question about the prior conviction?

up to the judges discretion FRE 609(a) permits impeachment of a witness by evidence that he has been convicted of a crime punishable by imprisonment in excess of one year (FRE 403)

true or false: under the Federal Rules of Evidence, character evidence may not be used as an evidentiary fact in civil cases

TRUE

Dr. Bowen, the first defense witness, was cross-examined by the prosecution. The cross-examination attempted to show that Dr. Bowen did not know Lizzie very well. Dr. Bowen admitted that Lizzie was very reclusive and that he had talked to her about a dozen times. As its second witness, the defense calls Dr. Jones. Dr. Jones will testify, if permitted, that Dr. Bowen's reputation in the community for truthfulness is excellent. Is Dr. Jones' testimony admissible?

NO

In his case in chief, defendant offers testimony of members of his carpool that defendant never drove more than 30 miles per hour, even when the speed limit was higher. Is the testimony admissible?

NO

In its case in chief, the prosecution offers testimony that Lizzie had a bad reputation in the community for violence. Should the testimony be admitted?

NO

In its case in chief, the prosecution offers testimony that a year before the murders, Lizzie was convicted of attempted murder after she fired a fusillade of shots into a neighbor's house because the neighbor was holding a loud party. Should the testimony be admitted?

NO

In its case in chief, the prosecution offers testimony that the bank robber escaped in a blue late-model Chevrolet. It also offers testimony that (a) a blue late-model Chevrolet was stolen 10 blocks from defendant's house on the morning before the robbery, and (b) it is common for bank robbers to use a stolen car as a getaway car so that they cannot be traced through identification of the car. Is the testimony admissible?

NO

In its case in chief, the prosecution offers testimony that within the last three years defendant has been convicted of two other bank robberies. Should the testimony be admitted?

NO

In its rebuttal case, the prosecution calls a witness who will, if permitted, testify that Lizzie has a bad reputation in the community for veracity. Is the testimony admissible?

NO FRE 404(a)(2)(B) pertinent trait admissible

Assume that the court allowed defense counsel to cross-examine Sullivan about whether she was expelled for cheating. Sullivan denied cheating and denied that she was expelled. May the defense, at any point in the trial, introduce testimony by other witnesses to show that Sullivan was expelled for cheating?

NO Rule 608(b) prohibits introduction of extrinsic evidence of acts of misconduct for purposes of attacking a witness's creditability

In its rebuttal case, the prosecution also offers the testimony of Smith, the defendant's former employer, that he fired defendant because he discovered that defendant was stealing money from the cash register. Is the testimony admissible?

NO evidence would probably be excluded -probably not be admissible on the issue of the defendants predisposition b/c the crime of theft is not similar enough to selling heroin to indicate much propensity to commit the latter crime -is not admissible to attack a defendants credibility as a witness b/c Rule 608(b) prohibit attacking a witness with extrinsic evidence of crime that did not result in conviction

true or false: character evidence is admissible in civil cases when a trait of character is an essential element of a claim or defense

TRUE

true or false: character is an essential element in a defamation action?

TRUE

In its rebuttal case, the prosecution also offers the testimony of Jones, who has known the defendant for many years, that in his opinion the defendant is a chronic liar. Is this testimony admissible?

YES because the defendant took the stand, his credibility as a witness can be attacked by opinion testimony about character for untruthfulness FRE 608(a)

As its fourth witness the defense offers the testimony of Emma, Lizzie's sister. If permitted, Emma will testify that Lizzie never had any quarrels or fights with her parents. Should the testimony be admitted?

YES

Defense counsel argues that since defendant did not produce reputation testimony in his case in chief, the prosecution cannot produce reputation testimony. In light of this argument, please re-answer the question: Is the testimony that defendant had a reputation in the community as a heroin dealer admissible?

YES

In his case in chief in this negligence action, defendant offers the testimony of a member of his carpool that defendant invariably used his turn signal when making a turn. is this testimony admissible?

YES

In its case in chief in the bank robbery case, the prosecution offers testimony of witnesses that the robber was disguised as an elderly woman. It also offers testimony that two years previously the defendant robbed a bank while disguised as an elderly woman. Should the testimony be admitted?

YES

The defense also offers the testimony of Emma that Bridget Sullivan, a prosecution witness, has a bad reputation for untruthfulness. Is the testimony admissible?

YES

The defense rested its case after presenting the testimony of Emma and the character witness. In its rebuttal case, the prosecution calls a witness who will, if permitted, testify that Lizzie has a bad reputation in the community for violence. Is the testimony admissible?

YES

After presenting the testimony of the alibi witness, the defendant called a character witness who testified that defendant's reputation as an honest and law-abiding person was excellent. On cross-examination, the prosecutor asked the witness if he had heard that the defendant had been convicted twice of bank robbery in the last three years. Is the cross-examination permissible?

YES FRE 405(a) permits cross-examination of the character witness about relevant specific instances of conduct by the defendant

Assume that the court permitted defense counsel to cross-examine Sullivan about whether she was expelled for cheating, and Sullivan acknowledged that she had been expelled for that reason. Would the prosecution be permitted to introduce testimony of a neighbor who knew Sullivan that in his opinion Sullivan was a truthful person?

YES Rule 608(a) permits the credibility of a witness to be supported by opinion evidence of character for truthfulness if it has been 'attacked by opinion for reputation evidence or otherwise'

Unaccountably, the witness Snow denies that he was arrested and charged with the heroin offense. May the defense introduce extrinsic evidence of the arrest and charge?

YES because the testimony is offered to show the witness's bias and the witness has denied the impeaching facts, extrinsic evidence is admissible

Assume that the witness Snow was permitted to testify about prior heroin sale. On cross-examination of Snow, defense counsel seeks to elicit from Snow an admission that three months before the trial, Snow was arrested for possession of heroin with intent to sell. Snow has been charged with the crime but has not yet been tried. Should this cross-examination be permitted?

YES cross-examination of this nature is routinely permitted in criminal cases b/c it indicates that the witness may be cooperating with the prosecution in hopes of receiving leniency

Assume that, after presenting evidence sufficient to support a jury finding that Lizzie committed the murders, the prosecution rested its case in chief. In its case in chief, the defense offers the testimony of Dr. Bowen, a neighbor who has known Lizzie for years. Dr. Bowen will testify that in his opinion Lizzie has an extremely peaceable character. Should the testimony be admitted?

YES defense is permitted to introduce opinion evidence as to pertinent traits of the defendants character FRE 404(a)(2)(B) and 405(a)

In its case in chief, the prosecution offers testimony that on the day before the crime, Lizzie attempted to buy prussic acid, a deadly poison, from a local druggist. The druggist refused to sell her the poison. Should the testimony be admitted?

YES probative under FRE 404(b)

In its case in chief, the prosecution offers the testimony of Bridget Sullivan, the Borden's housekeeper, that two days before the murders she overheard an argument between Lizzie and her stepmother. The stepmother accused Lizzie of stealing her jewelry and threatened to go to the police. Lizzie denied the crime. Should this testimony be admitted?

YES relevant to Lizzie's motive

Defense counsel argues that evidence of propensity to sell heroin is evidence of a trait of the defendant's character. Do you agree that this evidence is character evidence?

YES the evidence is character evidence, just as the evidence of prior bank robberies in the previous case would be character evidence if offered to show a propensity to rob banks

The defendant rested after presenting the testimony of the alibi witness and the character witness. In its rebuttal case, the prosecution offered a certified copy of defendant's two previous convictions for bank robbery. Is this evidence admissible?

no, testimony is inadmissible -not admissible to show that the defendant had a propensity to rob banks -not admissible under Rule 609 to attack defendants credibility as a witness because the defendant did not testify

The prosecutor argues that because defendant took the stand, this testimony is admissible to attack defendant's credibility as a witness. In light of this argument, please re-answer the question: Is the testimony of Jones that in his opinion defendant is a chronic liar admissible?

yes, admissible Rule 608(a) permits the credibility of a witness to be attacked by opinion testimony about character for untruthfulness