Character Evidence

Front 1

2 steps to character evidence

Back 1

1. Whether or when character evidence can be proven. Rule 404(a).
2. How it can be proven. Rules 405(a) and 607 through 609.

Front 2

Rule 404(a)’s three exceptions to character evidence ban

Back 2

Character of the defendant in a criminal case.

Rule 404(a)(2)(A).
Character of the alleged victim in a criminal case. Rule 404(a)(2)(B).
Character of witnesses. Rule 404(a)(3).

Front 3

Rule 404(a)(2) Exceptions for a Defendant or Victim in a Criminal Case

Back 3

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;

Front 4

“Pertinent” traits of character

Back 4

Rule 404(a)(2) allows use of evidence of pertinent traits of character of the accused or of the alleged victim.
E.g., Michelson could not have offered proof of peacefulness, since he was not charged with a violent crime.

Front 5

Character of accused (initial offer and Ways to prove)

Back 5

The prosecution can’t be the first to offer evidence of the defendant’s bad character; the defendant must open the door to use of character evidence.

Ways, in theory, character could be proven
Testimony as to the defendant’s reputation in the community.
Testimony as to a witness’s personal opinion of the defendant’s character.

Evidence of specific acts by the defendant that tend to show the character trait in question.

Front 6

Common law vs. Federal Rules

Back 6

Common law, as applied in Michelson, allowed only testimony about reputation.
Federal Rules allow testimony to be given in form of either reputation or opinion. Rule 405(a).
But Rule 405(a) still does not allow the use evidence of specific acts to prove the defendant’s or victim’s character.

Rule 405(a) - By Reputation or Opinion PROOF

Hint 6

(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.

Front 7

Once the defendant has “opened the door,” how can the prosecution fight back?

Back 7

First, by calling its own character witnesses to testify that the defendant has a bad character.
But, because of Rule 405(a), this evidence may only be in form of reputation or opinion.

Second, by attacking the character for truthfulness of the defendant’s character witnesses, in the ways allowed by Rules 607 to 609. See Rule 404(a)(3). [To be covered in Assignment #9]
Third, by asking the defendant’s character witness whether the witness has heard about specific acts of bad conduct by the defendant. See Rule 405(a), last sentence (“On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.”).

When third method is used, the prosecutor is bound by the witness’s answer.
Therefore, no extrinsic evidence that the defendant actually committed the bad acts is allowed; may only ask the character witness whether she has heard about the acts.
Extrinsic evidence = anything other than an admission out of the witness’s own mouth.

Front 8

Prior Convictions

Back 8

Prosecutor is allowed to ask if the witness has heard about prior convictions, or about prior bad acts for which defendant was not arrested, or even about prior arrests.
But must have reasonable basis to believe the act occurred in order to ask the question.

Front 9

Proper form of question

Back 9

Question should take form of “Have you heard that Michelson was arrested for receiving stolen goods?”
Not “Did you know that Michelson was arrested for receiving stolen goods?”

Front 10

Character of victim

Back 10

Rule 404(a)(2)(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:
(i) offer evidence to rebut it; and
(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.

Front 11

Limitations on evidence of character of victim

Back 11

This is limited to pertinent traits of character, and the defendant must attack the victim’s character before the prosecution can support the victim’s character.
Typical use: to try to paint alleged victim as the aggressor (self defense claim).
But Rule 405(a) allows only reputation and opinion testimony.
2000 amendment
Congress amended Rule 404(a) to provide that if a defendant offers evidence of the alleged victim’s character, then the prosecution may offer evidence that the defendant shares this same trait of character, even if the defendant has not otherwise put his own character in issue. See Rule 404(a)(2)(B)(ii).

Front 12

Civil cases

Back 12

For a while, there was some uncertainty whether the exceptions for character of defendant and character of victim might apply in at least some civil cases.
But 2006 amendment clarified that these exceptions apply only in criminal cases.

Front 13

Rule 405(b) By Specific Instances of Conduct.

Back 13

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.
Rule 405(b)’s very limited role
See casebook for a listing of the very limited circumstances in which character will be an “essential element” of a charge, claim, or defense.
The use of “other act” evidence in these circumstances does not violate the propensity evidence ban anyway.

Front 14

Rule 406 - Habit

Back 14

“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.”

Front 15

Rationale behind Rule 406

Back 15

With habit, rationale is that someone always does something in particular way, and therefore that they did it this way on this particular occasion.
Does not involve propensity reasoning.

Front 16

2 steps to character evidence

Back 16

First, whether or when character evidence can be proven. Rule 404(a).

Second, how it can be proven. Rules 405(a) and 607 through 609.

Front 17

Rule 404(a)’s three exceptions to character evidence ban...

Back 17

Character of the defendant in a criminal case. Rule 404(a)(2)(A).

Character of the alleged victim in a criminal case. Rule 404(a)(2)(B).

Character of witnesses. Rule 404(a)(3).

Front 18

Rule 404(a)(2) Exceptions for a Defendant or Victim in a Criminal Case

Back 18

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;

Front 19

“Pertinent” traits of character

Back 19

Rule 404(a)(2) allows use of evidence of pertinent traits of character of the accused or of the alleged victim.
E.g., Michelson could not have offered proof of peacefulness, since he was not charged with a violent crime.

Front 20

Character of accused (initial offer and Ways to prove)

Back 20

The prosecution can’t be the first to offer evidence of the defendant’s bad character; the defendant must open the door to use of character evidence.

Ways, in theory, character could be proven
Testimony as to the defendant’s reputation in the community.
Testimony as to a witness’s personal opinion of the defendant’s character.
Evidence of specific acts by the defendant that tend to show the character trait in question.

Front 21

Common law vs. Federal Rules

Back 21

Common law, as applied in Michelson, allowed only testimony about reputation.
Federal Rules allow testimony to be given in form of either reputation or opinion. Rule 405(a).
But Rule 405(a) still does not allow the use evidence of specific acts to prove the defendant’s or victim’s character.

Front 22

Rule 405(a) - By Reputation or Opinion PROOF

Back 22

(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.

Front 23

Once the defendant has “opened the door,” how can the prosecution fight back?

Back 23

First, by calling its own character witnesses to testify that the defendant has a bad character.
But, because of Rule 405(a), this evidence may only be in form of reputation or opinion.

Second, by attacking the character for truthfulness of the defendant’s character witnesses, in the ways allowed by Rules 607 to 609. See Rule 404(a)(3). [To be covered in Assignment #9]
Third, by asking the defendant’s character witness whether the witness has heard about specific acts of bad conduct by the defendant. See Rule 405(a), last sentence (“On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.”).

When third method is used, the prosecutor is bound by the witness’s answer.
Therefore, no extrinsic evidence that the defendant actually committed the bad acts is allowed; may only ask the character witness whether she has heard about the acts.
Extrinsic evidence = anything other than an admission out of the witness’s own mouth.

Front 24

Prior Convictions

Back 24

Prosecutor is allowed to ask if the witness has heard about prior convictions, or about prior bad acts for which defendant was not arrested, or even about prior arrests.
But must have reasonable basis to believe the act occurred in order to ask the question.

Front 25

Proper form of question

Back 25

Question should take form of “Have you heard that Michelson was arrested for receiving stolen goods?”

Not “Did you know that Michelson was arrested for receiving stolen goods?”

Front 26

Character of victim

Back 26

Rule 404(a)(2)(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:
(i) offer evidence to rebut it; and
(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.

Front 27

Limitations on evidence of character of victim

Back 27

This is limited to pertinent traits of character, and the defendant must attack the victim’s character before the prosecution can support the victim’s character.
Typical use: to try to paint alleged victim as the aggressor (self defense claim).
But Rule 405(a) allows only reputation and opinion testimony.
2000 amendment
Congress amended Rule 404(a) to provide that if a defendant offers evidence of the alleged victim’s character, then the prosecution may offer evidence that the defendant shares this same trait of character, even if the defendant has not otherwise put his own character in issue. See Rule 404(a)(2)(B)(ii).

Front 28

Civil cases

Back 28

For a while, there was some uncertainty whether the exceptions for character of defendant and character of victim might apply in at least some civil cases.
But 2006 amendment clarified that these exceptions apply only in criminal cases.

Front 29

Rule 405(b) By Specific Instances of Conduct.

Back 29

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.
Rule 405(b)’s very limited role
See casebook for a listing of the very limited circumstances in which character will be an “essential element” of a charge, claim, or defense.
The use of “other act” evidence in these circumstances does not violate the propensity evidence ban anyway.

Front 30

Rule 406 - Habit

Back 30

“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.”

Front 31

Rationale behind Rule 406

Back 31

With habit, rationale is that someone always does something in particular way, and therefore that they did it this way on this particular occasion.
Does not involve propensity reasoning.