Character Evidence: Fre 404

Front 1

FRE 404(A): Character evidence
(a1): Propensity Character Evidence & Prohibited Uses
(a2): Character Evidence: exceptions for a D or victim in a criminal case
(a3): Exceptions for a witness

CHARACTER EVIDENCE

Back 1

(a1)
Evidence of a person's character or character trait may not be introduced to support an inference that the person acted on a specific occasion in conformity with that character or trait

*Applies to CIVIL cases w/ no exceptions & CRIMINAL cases with some xptns
*FRE 413-415 = exclusions to this rule

(a2)
The following exceptions shall apply in a criminal case:
(A) A D may offer evidence of the D's pertinent trait, & if the evidence is admitted, the prosecutor may offer evidence to rebut it (
(B) Subject to the limitations of FRE 412, a D may offer evidence of the alleged V's pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) Offer evidence to rebut it; &
(ii) Offer evidence of the D's same trait; &
(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

(a3)
Xptns for a W. Evidence of a W's character may be admitted under FRE 607-609

Front 2

FRE 404(B): Crimes, wrongs, or other acts
(b1): Prohibited uses
(b2): Notice in a criminal case


CHARACTER EVIDENCE

Back 2

(b1)
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

(b2)
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.

*FRE 405 is subsidiary to FRE 404 and sets forth how character can be proved in a situation where FRE 404 allows any attention at all to the topic of character

Front 3

FRE 405: Methods of Proving Character

CHARACTER EVIDENCE

Back 3

(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.

(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.

*Only applies when 404 is satisfied

Front 4

FRE 413: Similar Crimes in Sexual Assault Cases

CHARACTER EVIDENCE

Back 4

In a criminal case in which a D is accused of child molestation, the court may admit the evidnece that the D committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

*Exclusion to FRE 404(a)(1): Character Evidence

Front 5

FRE 414: Similar Crimes in Child Molestation Cases

CHARACTER EVIDENCE

Back 5

In a criminal case in which a D is accused of child molestation, the court may admit the evidnece that the D committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

*Exclusion to FRE 404(a)(1): Character Evidence

Front 6

FRE 415: Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

CHARACTER EVIDENCE

Back 6

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.

*Exclusion to FRE 404(a)(1): Character Evidence

Front 7

FRE 601: Competency to Testify

IMPEACHMENT

Back 7

Every person is competent to testify unless these rules provide othersie. But in a civil case, state law governs the witness's compentency regarding a claim or defense for which state law supplies the rule of decision

*Judge may use FRE 401-403 to control whether or not they are permitted to testify
*Rule 603 also controls: "before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form desginated to impress that duty on the witness's conscience." (if decides to make a secular oath, cannot be used later to impeach them under Rule 610 which protects religious affiiliation)

Front 8

FRE 602: Need for Personal Knowledge

IMPEACHMENT

Back 8

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knoweldge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.

*Standard: Judge or juror may be able to reasonably conclude that they have personal knowledge of the subject matter

Front 9

FRE 603: Oath or Affirmation to Testify Truthfully

IMPEACHMENT

Back 9

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.

Front 10

FRE 607: Who May Impeach a Witness

IMPEACHMENT

Back 10

Any party, including the party that called the witness, may attack the witness's credibility

Front 11

FRE 608: A witness

IMPEACHMENT

Back 11

(a) reputation or opinion evidence: a witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. but evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.
(b) Specific instances of conduct: Except for a criminal conviction under FRE 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about

*By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only

Front 12

FRE 609(a): Impeachment by Evidence of a Criminal Conviction

IMPEACHMENT

Back 12

(a) In general. The following rules apply to attacking a W's character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting Jx, was punishable by death or imprisonment for <1 year, the evidence:
(a) must be admitted, subject to FRE 403, in a civil case or in a criminal case in which the witness is not a D; &
(b) must be admitted in a criminal case in which the witness is a D, if the probabative value of the evidence outweighs its prejudicial effect to that D; &
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness admitting - a dishonest act or false statement

Front 13

FRE 609(b): Limit on Using Evidence After 10 Years

IMPEACHMENT

Back 13

(b) Limit on using the evidence after 10 years. This (b) applies if more than 10 years have passed since the W's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; &
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Front 14

FRE 609(c): Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

IMPEACHMENT

Back 14

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Front 15

FRE 609(d): Juvenile Adjudication: Evidence of a juvenile adjudication is admissible under this rule only if:

&

FRE 609(e)

Back 15

(d):
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e):
Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Front 16

FRE 610: Religious Beliefs or Opinions

IMPEACHMENT

Back 16

Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

Front 17

FRE 606(b): Admission of Juror's Competency as a Witness to Impeach Verdict --> (6th amendment right to competent jury)

Back 17

(b) During an inquiry into validity of a verdict or indictment.
(1) Prohibited testimony or other evidence. During an inqiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during jurt deliberations, the effect of anything on that juror's or another juror's vote, or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.
(2) EXCEPTIONS: A juror may testify about whether:
(1) Extraneous prejudicial information was improperly brought to the jury's attention; or
(2) An outside influence as improperly brought to bear on any juror; or
*Drugs & alcohol not 'outside influence,' MAYBE race would be
(c) A mistake was made in entering the verdict on the verdict form