Character Evidence

Front 1

The Propensity Rule

Back 1

o A: Evidence of character is inadmissible for proving action in conformity therewith
• So, if we are just proving character to show that he is probably a bad person and is guilty/liable because of that, inadmissible propensity evidence
o B: Evidence may be admissible to prove motive, intent, preparation, etc
• Still has to pass 403 test

Front 2

What are the three bir exceptions to putting on propensity evidence?

Back 2

404(a)(1) → defendant can offer evidence that he’s a good guy
404(a)(2) → can offer evidence of victim’s character
404(a)(3) → can offer evidence of witness’s character

Front 3

Exceptions to the Propensity Rule

Character of the Accused

Fed Rule

Back 3

Fed Rule:
• Evidence (reputation or character evidence - not specific acts) of a pertinent character trait admissible IN A CRIMINAL CASE when offered:

1. By an accused; or
2. By the prosecution to rebut the same

• Or if evidence of a character trait OF THE VICTIM is offered BY THE ACCUSED

Then, EVIDENCE OF THE SAME TRAIT of the accused can be offered by the prosecution

Front 4

What is Character?

Back 4

“Character is a generalized description of a person’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness.”

Front 5

What variables should you consider in determining whether or not character evidence is admissible?

Back 5

• Trait of character

• Purpose (what inference are you relying on?)
o Propensity—not ok
o 404(b)—ok

• Method of Proof
o Reputation—“Brad’s rep in his community → violent.”
o Opinion—“I know Brad, and I think Brad is a violent person.”
o Specific Instances (usually can’t use this one.)

• Timing
o Direct, cross, or re-direct
o Case-in-chief or rebuttal

• Jurisdiction
o State or
o Federal

Front 6

Character of the accused
Tex Rule:

Back 6

• Evidence of a pertinent character trait is admissible
- When offered by the accused in a criminal case or by the prosecution to rebut the same OR
- By a party accused in a civil case involving moral turpitude or by the accusing party to rebut the same

Front 7

When is character of the accused admissible?

Back 7

• Defendant can always offer character evidence, but this opens the door
• State can never initiate character evidence, but can go through the door once D opens it

Front 8

When does D open the door to evidence about his character trait?

Back 8

-- If a witness brings character up and D doesn’t strike it, opened door

-- Door isn’t opened if Prosecutor is the one who makes the witness go into character

Front 9

What are the consequences of opening the door to a Ds character trait?

Back 9

o Consequences:
• Prosecution can put on own rebuttal evidence of bad character
• P can cross D’s witness with “have you heard” questions about specific instances
 This is to IMPEACH THE CHARACTER WITNESS’ CREDIBILITY, not to attack the character of the accused
---This gets specific instance in front of the jury
---P must have a GOOD FAITH basis to ask

Front 10

What are the methods of proof of character?

Back 10

• Testimony evidence of reputation or opinion evidence on direct
 Reputation (Community)- must establish witness’ familiarity with the pertinent community’s opinion
 Opinion (personal)- must establish that witness knows the person and is familiar with his character
• Specific instances through “have you heard” ON CROSS to impeach character witness’ credibility

Front 11

What are the limitations of have you heard questions?

Back 11

• Relevance
• Limiting Instruction
• Good faith basis
• Must take the answer: The attorney cannot bring in evidence that a prior bad act really occurred if the witness says he does not know about it. However, if it can be proved that the witness is lying about whether they knew about the prior bad act, that probably could be impeached by extrinsic evidence.
• Rule 403: There can still be a Rule 403 objection where the probative value toward impeachment is outweighed by prejudice.

This is not designed to affect the credibility of the witness but to impeach the witness’s PERCEPTION of the defendant’s character. The defense should ask for a limiting instruction against any evidence against the defendant.

Front 12

What is the predicate for reputation questions?

Back 12

• Acquaintance with defendant
• Community in which lived
• Circles in which he has moved
• Question about reputation as to SPECIFIC character trait. (i.e. peacefulness)

Front 13

What is the predicate for opinion questions?

Back 13

What is the predicate for opinion questions?
• Familiar with the defendant
• Familiar enough to form opinion about his specific character trait. (i.e. peacefulness)

Front 14

What is the appropriate form of the question?

Back 14

Now that either opinion or reputation questions are permitted, the form of the question is less important now. It will not be reversible error to ask “did you know” rather than “have you heard.” (Did you know = opinion; Have you heard = reputation)




The state cannot insert character into issue by its own cross-examination.

Front 15

What if the character trait is an essential element of the crime, charge or offense?

Back 15

• Specific instances allowed when the character trait is an essential element of the crime, charge, or defense

Front 16

what if the D hasn't opened the door but the prozecution asks a character question?

What if the witness says something about character on cross or direct that the D atty didn't intend him to?

Back 16

1. The state cannot use cross-examination to transform a witness into a character witness.

2. The state cannot use cross-examination to transform a witness into a character witness.

Front 17

In Texas what is another reason to use Have you heard Qs despite not haveing a character witness on the stand?

Back 17

Wheeler v. State
Wheeler did not put on the witness as a character witness. She was an expert witness. However, the testimony sounded a lot like character testimony.

The Texas Court of Criminal Appeals has given another reason for “have you heard” questions where the witness’s direct created a ¬false impression of the defendant.

Ex: Where the defendant says, “I’ve never been in trouble,” the prosecutor can impeach the false testimony about not being in trouble by crossing and bringing in evidence.

Front 18

Character of the Victim

Back 18

o This is almost always seen in SELF DEFENSE

• D tries to prove character of the victim to show that he was the first aggressor

Front 19

What is the Federal rule with regard to character of the victim?

Back 19

o Fed Rule:
• In a criminal case (subject to rape shield)
• Evidence of a pertinent trait of character of the victim
-- Offered by the accused or
--- By the prosecution to rebut the same

Or

evidence of a character trait of peacefulness of the victim
-- Offered by the prosecution in a HOMICIDE CASE
--To rebut evidence that the alleged victim was the first aggressor
• NOTE: this second portion allows P to present evidence of victim’s peaceful character in the face of any evidence that victim was the first aggressor. D doesn’t have to introduce character evidence

Front 20

Texas Rule for bringing in Character Evidence of the Victim

Back 20

o Tex Rule:
• In a criminal case

Evidence of a pertinent character trait of the victim
-- Offered by the accused or
-- By the prosecution to rebut the same

Or

evidence of the peaceable character of the victim
-- Offered by the prosecution to rebut evidence that the victim was the first aggressor

• In a civil case

Evidence of character for violence of assault victim
-- Offered on the issue of self defense
• By a party accused of the assaultive conduct
• Or evidence of peaceful character to rebut the same

Front 21

o Consequences for D:
• If D or Ds wintness attacks the credibility of the victim, P can

Back 21

• If D attacks the credibility of the victim, P can:
 Cross the witness to impeach
 Bring witness to testify to victim’s character for peacefulness
 Attack Defendant’s character on that same trait

Front 22

Ways D can show self defense

Back 22

• 1. Character evidence to show victim’s propensity for violence
-This is 404(a)(2)
-Can only use reputation or opinion evidence
-D need not have known about this
-Opens the door for P to prove peacefulness of victim and to attack the same trait of D’s (fed)

• 2. Show victim’s intent, motive, state of mind
- This is 404(b)- not propensity
- Can use specific instances of aggression
- D need not have known about it
- Opens the door for P to put on proof on victim’s peacefulness (if it’s a homicide case), but can’t attack D’s character

• 3. Show D’s state of mind and belief that he needed to protect himself
- Not propensity
- Can use specific instances
- D has to have been aware
- Opens the door for P to put on proof on victim’s peacefulness (if it’s a homicide case), but can’t attack D’s character

o If offering specific instances for something other than propensity, be sure to specify and ask for limiting instruction to avoid completely opening the door

Front 23

Character of the Witness

Who can impeach the credibility of a witness?

Back 23

Rule 607:
• The credibility of ANY witness may be impeached by ANY party
• So, as soon as someone becomes a witness, their credibility is fair game

Front 24

What can a witnesses credibility be attacked for?

Back 24

• Fed Rule 608:
 The credibility of a witness may be attacked or supported by OPINION OR REPUTATION testimony
 May refer only to character for TRUTHFULNESS/UNTRUTHFULNESS
• This is the ONLY trait can go into

Front 25

When can a witnesses character for truthfullness or untruthfullness be attacked?

Back 25

 Evidence SUPPORTING character admissible ONLY AFTER the character of that witness has been attacked by reputation, opinion, or otherwise
• Can’t use it to bolster credibility if it hasn’t already been attacked

Front 26

What are othe ways to attack a witnesses' character for truthfulness besides opinon or reputation?

Back 26

==> Something offered under 609 to prove conviction of a crime (unless used to show something other than character)
==> Something offered under 608(b) to impeach with prior bad act (other forms of impeachment won’t be about character, so won’t trigger this)
==> Impeachment by prior inconsistent
statement or contrary extrinsic evidence?
• TX→probably triggers
• Fed→probably doesn’t

Front 27

can you attack a witnesses' charcter for truthfulness with specific instances of conduct?

Back 27

• Specific instances
• Can’t be proven be extrinsic evidence
• May be addressed on cross if:
==> Concerning witness’ character for truthfulness or
==> Character for truthfulness of another witness whose character this witness has testified to

Front 28

What are your options in impeching a witnesses character for truthfulness?

Back 28

• Call opinion witness to show untruthfulness
• Call rep witness to show untruthfulness
• Specific instance resulting in conviction—609
• Specific instances not resulting in conviction—608(b) [ONLY IN FEDERAL COURT]

Front 29

Tex Rule 608:

what is the difference?

Back 29

• Same as federal except when it comes to specific instances
• In Tx, specific instances cannot be brought up on cross or proved by extrinsic evidence
• Only exception is 609 (prior conviction)

Front 30

Attacking ANY witnesses OTHER THAN THE ACCUSED IN CRIMINAL CASE'S (INCLUDING THE D IN A CIVIL CASE )character for truthfullness with specific instances of a crime

• Fed Rule 609:
• A. For the purpose of attacking the CHARACTER FOR TRUTHFULNESS, evidence of a crime shall be admitted if…

Back 30

You can attack ANY witness(EVEN THE D IN A CIVIL CAS) OTHER THAN THE ACCUSED's IN A CRIMINAL CASE'S character for truthfulness if:
1. it is a crime punishible by more than one year (basically felonies)
AND
403 probative value is not substantially outweighed by the danger of unfair prejudice.

Front 31

Attacking THE ACCUSED'S character for truthfullness with specific instances of a crime

• Fed Rule 609:
• A. For the purpose of attacking the CHARACTER FOR TRUTHFULNESS, evidence of a crime shall be admitted if…

Back 31

You can attack the accused's character for truthfullness with evidence of a criminal conviction IN A CRIMINAL CASE if:

1. it's a felony
AND

2. the court determines that THE PROBATIVE VALUE OUTWEIGHS THE PREJUDICIAL EFFECT TO THE ACCUSED
o Sounds like 403 but it lowers the hurdle and switches the starting point
o We start with inadmissible and get to admissible if the PROPONENT can show that the probative value outweighs the prejudicial effect

Front 32

You can attack any witnesses' character for truthfullness with evidence of a conviction for a crime regrdless of the punishement (doesn't have to be felony) if:

Back 32

• Establishing the ELEMENTS of the crime
• REQUIRED proof or admission of an act
o Wasn’t just dishonest in how he committed the crime. Has to be required for a conviction
• Of DISHONESTY OR FALSE STATEMENT
o The dishonesty or false statement has to be a part of the crime
o Crimen Falsi →fraud, perjury, embezzlement, etc

Front 33

What is the time limit for use of convictions in FED?

Back 33

Evidence of a conviction is NOT ADMISSIBLE if
• From date evidence is offered MORE than 10 years has elapsed from LATER of:
o Date of release (if given prison time)
o Date of conviction

• Unless:
o Court determines probative value, based on specific facts, substantially outweighs prejudice
• Use specific facts to show that he hasn’t reformed!
AND
o Proponent GIVES NOTICE of intent to use it soon enough the give opponent a chance to contest
• Proponent has to automatically give notice (In Tex, opponent has to request notice first)
• This is the first time we balance crimen falsi convictions. Before they were automatically in.

Front 34

Texas Rule 609 and its differences

Back 34

: Evidence of conviction SHALL be admitted in both civil and criminal cases if:
• 1. The crime was a FELONY OR
• 2. INVOLVED MORAL TURPITUDE AND
• 3. The court determines that the PROBATIVE VALUE OF ADMIITING THE EVIDENCE OUTWEIGHS ITS PREJUDICIAL EFFECT TO A PARTY

Front 35

Time limit in TEXAS

Back 35

Same time period:

not admissible if MORE than 10 years has passed between date evidence is offered and LATER of date of release or date of conviction.

UNLESS the court finds that the probative value of the conviction SUPPORTED BY SPECIFIC FACTS AND CIRCS SUBSTANTIALLY outwieghs its prejudicial effect.

this is different than the balancing of unstale convictions

Front 36

NOTICE IN TEXAS

Back 36

Evidence of conviction is not admissible if failed to give sufficient notice BUT the opposing party has to request notice first (not automatically required for stale convictions, like fed)

Front 37

DIfference in TEX

Back 37

• This doesn’t include a distinction for accused/non-accused witnesses
• Allows admission of a crime that involved moral turpitude
• We aren’t just talking about crimen falsi. There’s more. No bright line
• Look to case law to see what court’s have held “involved moral turpitude”

Front 38

Moral turpitude examples - look to case law

Back 38

all crimen falsi
prostitution
agg assault on a female
etc.

NOT:
simple assault
agg assault on a male
alcohol

Front 39

what to look for when balancing probativeness under 609

Back 39

• When balancing probativeness v. prejudice consider:
• Impeachment value of prior crime
• Remoteness of prior crime
o Longer ago →less probative
• Similarity to current crime
o More similar →more prejudicial
o Only when witness is accused
• Importance of D’s testimony
o Fed→ Importance favors D
o Texas→ Importance favors P
o Only when witness is accused
• Importance of credibility issue
o More important→ more probative
• Felony v. Moral turpitude (TX only)
o Felony→lower probative value

Front 40

Pendancy of appeal:

Back 40

In texas, the conviction and appeal must be final

in fed, if an appeal is pending you can still use evidence to impeach but the party who called that witness can produce evidenc of the appeal to rebut

Front 41

Effec of pardon or annullment:

Back 41

FED: Conviction is only inadmissible if pardon is based on rehabilitation or innocence.

If based on rehabilitation → If I can show that witness has been convicted of a subsequent crime [felony], original conviction is admissible.

Texas:
TX is slightly different: First, TX includes moral turpitude whereas the federal rule only includes felonies. Second, TX contains a provision concerning probation. TRE 609(c)(2) states, “Evidence of conviction is not admissible under this rule if: (2) probation has been satisfactorily completed for the crime for which the person was convicted, and that person has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment.”

Front 42

Juvenile convictions

Back 42

Evidence of juvenile adjudication is generally not admissible except “the court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attach the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.”

The TX rule is slightly different: Evidence is not admissible except when it is evidence to be used in another juvenile adjudication in which the witness is a party.

Front 43

PRIOR BAD ACTS (specific instanes of conduct) to impeach a witness's character for truthfulness

can you use them in TEXAS?

Back 43

• In TX
• Rule 608: Specific instances of conduct for the purpose of attacking the credibility of a witness, except as under Rule 609, may not be inquired into on cross or proven by extrinsic evidence
• So, can’t use prior backs acts to challenge TRUTHFULNESS
• Can use prior bad acts if falls under 609 (Prior conviction)
• Can use prior bad acts for some other purpose EX TO SHOW BIAS/PREJUDICE ETC.
• Ex. He lies about the case. Can impeach him with prior inconsistent statement or extrinsic evidence.

Front 44

Prior bad acts in Federal Court

Back 44

• Admissible ONLY ON CROSS EXAMINATION and not allowed to bring in extrinsic evidence
• Rule 608: If probative of truthfulness may be inquired into on cross if
• Concerning the witness’ character for truthfulness OR
• Concerning the character for truthfulness of another witness who character this witness has already testified to

Front 45

Non-Propensity Purposes of crimes, wrongs, or other acts

How can you use specific instances of crimes, wrongs, or other acts?

Back 45

• Character as an Essential Element
• Character as Circumstantial Evidence

Front 46

• Character as an Essential Element

Back 46

o If character is an ESSENTIAL ELEMENT of the claim, proof may be made as to SPECIFIC INSTANCES of conduct

o Proof may be made by opinion, reputation, OR specific instances

Front 47

What does it mean to be an essential element of a crime?

Back 47

Essential element: means the party has to prove character in order to have a claim

• Ex. Negligent hiring/retention (has to prove instances of employees alcoholism to show that company negligently entrusted him)
o Note: This is the only time can use specific instance in Tx (other than 609)

Front 48

Character as Circumstantial Evidence - can be used in both

Let me count the ways

Back 48

Prior bad acts can be used in fed and texas to show:

• Motive
• Opportunity
• Intent
• Preparation/plan
• Knowledge

EXCEPT

• Provided that:
• UPON REQUEST BY THE ACCUSED
• The prosecution IN A CRIMINAL CASE
• Shall provided reasonable notice in advance of trial
• Of the general nature of any such evidence it intends to introduce

• Identity
• Absence of mistake or accident

Front 49

Notice Requirements

Back 49

• Provided that:
• UPON REQUEST BY THE ACCUSED
• The prosecution IN A CRIMINAL CASE
• Shall provided reasonable notice in advance of trial
• Of the general nature of any such evidence it intends to introduce
• TX: only have to give notice if planning on using it in case-in-chief, not rebuttal
• Fed: have to give notice if planning on using it at all
• Both: There must be a request for notice first

Front 50

Relevance (must be relevant w/out propensity purpose)

Back 50

• Have to prove that D committed the extraneous offense
• Often, have to prove similarity between that offense and this one, but not every time [ex. Motive doesn’t require similarity]
• BOP for these issues:
• Fed standard → Preponderance of evidence
• Texas standard → Beyond reasonable doubt
o D will argue waste of time and 403
o Much harder in TX if don’t have a conviction

Front 51

Motive

Back 51

• Predicate- causation
• Ex. D was fleeing from a robbery and needed a car. He killed the driver and took his car. At murder trial, robbery would be admissible to show why he needed the car

Front 52

o Knowledge

Back 52

• Have to prove that D knew something at a particular time (goes to his state of mind)
• Ex. D claims that he didn’t know there was a gun in his car. At trial for possession, P can show that he had previously stolen the gun and obviously knew it was there.

Front 53

o Plan/Preparation

Back 53

• Prove that he committed the extraneous acts in preparation for this act
• Ex. At murder trial. He stole a gun to prepare for the murder. Robbery would be admissible

Front 54

o Opportunity

Back 54

• Prove that D was there, had access, etc
• Ex. D says he was in another city and couldn’t have committed robbery. At trial for robbery, P can introduce evidence that D committed an assault here, so he was in town

Front 55

o Intent

Back 55

• Most of these include some kind of circumstantial evidence of intent, but here we are concerned with direct evidence of intent.
• Normally to rebut a claim of lack of intent
• “Doctrine of Chances”- the more times the same thing happens, the less likely it is that it is an accident

Ex. i broke into the house but i didn't intend to rob them i was just trying to get my wallet

Front 56

o Identity

Back 56

• Modus Operandi
• Must show
• D in this case committed the prior crime
• Prior crime had high degree of similarity to this crime
• Both crimes were done in a highly distinctive way

Front 57

o Res Gestae/ Intrinsic Offenses

Back 57

• This comes into play when there is another act built in the charged offense and we can’t tell the whole story without included the extraneous act
• Tx term- “Same transaction contextual evidence”
• Fed term- “Intrinsic”
• Have to show that the crimes are inextricably intertwined
• Don’t get a limiting instruction here because it’s not an “other act” under 404(b)

Can't tell one story without the other. for example, in a murder conviction where a guy broke into a house to assasinate someone you can't leave out the breaking and entering without telling the story

Front 58

o Punishment Phase

Back 58

• Basically any character evidence is admissible at punishment phase, even unadjudicated and juvenile offenses

Front 59

Proving Character is Sexual Assault Cases

Back 59

• Fed Rule 412 (Rape Shield Law)
o Evidence not allowed:
• Evidence that the victim engaged in other sexual behavior (concerns other events)
• Evidence offered to prove victim’s sexual predisposition (concerned with this event)
• These include evidence that connotes sexual conduct (Ex. STDs, illegitimate children, etc)
o When evidence not allowed:
• In any civil or criminal proceeding
• Involving alleged sexual misconduct
• Much broader than just rape

Front 60

Criminal exceptions to the rape shield law

Back 60

• Specific instances of sexual behavior to show that another person is responsible
• Specific instances of sexual behavior with the accused
• By the D to show consent OR
• Ex. They were in a relationship and this was just sex
• By the P to show motive
• Ex. Extraneous prior sexual assault, angry ex
• Exclusion would violate D’s constitutional rights

Front 61

Civil Exception:

Back 61

• Evidence of sexual behavior or predisposition admissible if:
• Otherwise admissible under the rules AND
• Probative value SUBSTANTIALLY outweighs
• The harm to the victim AND
The unfair prejudice to the party
o If D is going to use this evidence, MUST have a hearing in camera

Front 62

Federal Rule 413

Back 62

o Evidence of D’s commission of another sexual assault is admissible
o The rule says that it IS admissible, but probably still has to pass 403
o Includes commissions of sexual assault, child molestation, civil sexual assault

Front 63

Character Evidence in Civil Cases

Back 63

• Will only see specific instances in civil cases (no reputation or opinion)
• Propensity rule applies equally to civil cases
• 404(a)(3) can apply to civil cases [character of the witness]
• In TX:
o 404(a)(1)(B) concerns a party accused in a civil case of conduct involving moral turpitude.
• Can put on character evidence here. (I’m not the kind of guy who would do that)
o 404(a)(2) allows a D in a civil assault case to put on evidence of the victim’s character for violence

Front 64

Habit, Routine, Practice

what is it and

what predicate must be laid?

Back 64

• Rule 406
o Evidence of the habit of a person or the routine of an organization is relevant to show that conduct was in habit/routine
o We basically prove that someone did something this time by proving that they did it all the time
• Procedure
o Have someone with PERSONAL KNOWLEDGE prove
• 1. Frequency- encountered this situation often
• 2. Regulairty- had a regular response to the situation
o Can be corroborated or not. Doesn’t require an eye witness

Front 65

When does this come up?

Back 65

Personal Injury Cases
• Plaintiff has had other injuries on past occasions.

Admissible to show that plaintiff’s alleged injuries are not the result of this accident, but rather the result of some other accident.
• Extraneous accident/injuries to others can be used against defendant to show a dangerous condition/instrumentality. For this evidence, you must show that the other accidents were reasonably similar (although not necessarily identical) → this is your predicate! [This is also an important category of evidenced in products cases. Same predicate applies].

Front 66

• Most important case in this area is Nissan

Back 66

o Evidence of similar incidents is inadmissible if it creates undue prejudice, confusion or delay
o Third party complaint letters → unless you have evidence that the letter states a valid claim, the letter is no evidence. Further, they are hearsay if offer to prove the truth of the matter asserted. If offered for another reason (that manufacturer had notice of defect), they’re ok.

Front 67

BACK TO HABIT AND ROUTINE

This looks like character evidence, but it’s not. Why not?

Back 67

• Character—a person’s propensity—is a broad description of a person’s tendency (i.e. violence). That characteristic can be seen in a number of different ways.
• Habit is a very narrow thing that can only be seen in one way.



“I’m a careful person”—Character
“My habit is to look both ways before crossing the street”—Habit

Front 68

Industry practice/custom is different from habit and routine.

Back 68

It’s used to establish a standard of care in the business.

When the essential predicate has been laid, proof of custom and usage should be admitted; but once admitted, it should not be allowed to fix the rule of conduct by which the jury are to be limited and governed. In other words, it should not definitively establish the standard of conduct.