Character Evidence

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Categories of character evidence

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1. witness's propensity to lie 608(b) & 609
2. conduct by propensity 404(a) and 405(a)
3. character or reputation as elements 405(b)
4. other acts for non propensity purposes 404(b)

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Rule 405(b)

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Proof of character or reputation as elements

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Rule 405(b) stmt.

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when a person's character or character trait is an essential element of a charge, claim or defense, the cahracter or trait may ALSO be proved by relevant specific instances of the person's conduct.

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When is rule 405(b) available in a criminal case?

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almost never, except for entrapment, where defendant must prove that she lacked a predisposition to commit the crime.

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when is rule 405(b) available in a civil case?

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defamation, negligent entrustment, child custody, amount of damages (loss of consortium, lost wages, pain suffering in wrongful death cases)

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Proof of conduct by propensity uses which rules?

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404(a) and 405(a)

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Rule 404(a) Stmt

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Generally, unless the D opens the door, 404(a) prohibits propensity type evidence.

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evidence of a person's character or character trait is...

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not admissible to prove that on a particular occasion the person acted in accordance with the character trait. 404(a)

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Exceptions under rule 404(a)Defendant or victim in a criminal case

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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.

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Rule 404 Title

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Character Evidence; Crimes or Other Acts

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Prohibited use of character evidence is?

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not admissible to prove that on a particular occassion the person acted in accordance with that character or trait

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Exceptions to the use of character evidence (criminial cases) #1 - defendants trait

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defendant may offer evidence of the defendant's pertinent trait

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if admitted

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the prosecutor may offer evidence in rebuttal 404(a)(2)(A)

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Exceptions to the use of character evidence (criminial cases) #2 Victims trait

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a defendant may offer evidence of an alleged VICTIM's pertient trait

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(i) offer evidence to rebut it

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AND

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Exceptions to the use of character evidence (criminial cases) #3 Homocide case

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the prosecutor may offer evidence of alleged victims of peacefulness to rebut that the victim was the first aggressor.

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Exceptions to the use of character evidence (witnesses character) #4

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evidence of a witnesses character may be admitted under rules 607

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Rule 404(b) Title

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Crimes

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prohibited uses under 404(b)(1)

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evidence of a crime

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permitted uses under 404(b)(2)

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evidence may be admissible for another purpose such as:

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to use evidence under 404(b)(2) you must? (2 things)

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provide reasonable notice of the evidence the prosecutor intends to use AND

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do so before trial

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or during trial if the court excuses lack ot pretrial notice.

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Rule for methods of proving character is?

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Rule 405

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Rule 405 Title

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Methods of proving character

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405(a)

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By reputation or opinion- when character evidence is admissible...it may be proved by testimony about the person's reputation or by testimony in the form of an opinion.

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405(b)

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By specific instances of conduct- when a person's character or character trait is an ESSENTIAL ELEMENT OF A CHARGE

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If defendant introduces evidence of his own good character...

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then the prosecutor can introduce evidence of the defendant's bad character for the same character trait.

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If defendant introduces evidence of the victim's bad character...

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then the prosecutor can introduce evidence of the victim's good character for the same character trait AND introduce evidence of the defendant's bad character for the same character trait

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If defendant introduces evidence that the victim in a homocide case was the first aggressor

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then the prosecutor can introduce evidence of the victim's peaceful character.

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406 Title

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Habit; Routine Practice

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406

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evidence of a person's habit or an organizations routine practice may be admitted to prove that on that a particular occasion the person or organization acted in accordance with the habit or routine practice.

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Rule 405(a) when evidence of a person's character or character trait is admissible, it may be proved by...

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1. testimony about the person's REPUTATION or by testimony in the form of an OPINION.

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On cross examination of a character witness, the court may allow...

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an inquiry into RELEVANT specific instances of the person's conduct &* there must be a good faith belief that the specific instances occured.

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Rule 404(b) Title

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Proof of other acts for NON-PROPENSITY purposes

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Rule 404(b) stmt.

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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 or trait. BUT, evidence of a crime or wrong, or other act is admissible FOR ANOTHER PURPOSE.

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Other purposes under 404(b) are..

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1. motive
2. opporutnity
3. INTENT
4. preparation
5. plan
6. knowledge
7. IDENTITY
8. absence of mistake
9. lack of accident

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other purpose 404(b) - motive example.

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offer of proof that defendant's accumulated tax liablities as motive to burn his warehouse for insurance proceeds

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other purpose 404(b) - opportunity example.

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evidence that the defendant had access to a protected place or to special tools

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other purpose 404(b) - intent example.

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1. look for similarities in the between the crime charged and prior crime. AND
2. courts construe this broadly, often allowing evidence in, especially in drug cases

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other purpose 404(b) - knowledge example.

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evidence of another crime that suggests defendant possessed knowledge of a particular fact that is an element of the crime charged

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other purpose 404(b) - Identity example.

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striking similarity doctrine: prosecution may offer evidence of other crimes by the defendnat that are virtually identical to the crime charged, and so distinctive/sophisticated/unusual to be almost like a SIGNATURE

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other purpose 404(b) - lack of accident example.

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Doctrine of chances: the chance of this/all of these things happening is very minimal ex. age discrimination cases where all people over a certain age were fired, child abuse cases wehre a parent repeatedly brought her child to the hospital with injuries

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Proceedure for intoducing other acts for a non-propensity purpose

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1. indentify a non-propensity purpose for the evidence.
2. establish that the other act actually occured
3. balance under rule 403
4. judge must give a LIMITING INSTRUCTION of the evidence is admitted.
5. On request by the defendant in a CRIMINAL CASE, the prosecutor MUST:
1. provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial AND
2. do so before trial - or during trail if for good cause, excuses the lack of pretrail notice.