Evidence Relevance / Character Evidence / Propensity

Front 1

Character Evidence, Propensity, Outline

Back 1

(1) Intro, (2) Character is an Element, (3) Circumstantial Use, (4) Method of Proof.

Front 2

Character Evidence, Introduction

Back 2

[A] Character questions arise in two fundamentally different ways: (1) Character is an element of a crime, claim, or defense; or (2) Circumstantial use of character evidence for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. [B] This circumstantial use of character evidence raises questions of relevancy as well as questions of allowable methods of proof. [The circumstantial use of character evidence is generally discouraged because it carries serious risks of prejudice, confusion and delay.]

Front 3

Character Evidence, Circumstantial Use

Back 3

[A] Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. [Rule 404(a)(1)]

Front 4

Character Evidence, Circumstantial Use, Exceptions

Back 4

[B] There are exceptions to this rule for a Defendant or Victim in a Criminal Case. [Rule 404(a)(2)] In a civil case evidence of a person’s character is never admissible to prove that the person acted in conformity with the character trait.

Front 5

Character Evidence, Circumstantial Use, Exceptions, Criminal Case

Back 5

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; (B) subject to the limitations for sex-offense cases, 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. [if the defendant uses character evidence for a different purpose than to prove propensity/character, that doesn’t open the defendant up to character evidence from the prosecution]

Front 6

Character Evidence, Circumstantial Use, Exceptions, Criminal Case, California

Back 6

California, narrower—Defendant first offers evidence of a victim’s character for violence, THEN by prosecution to rebut the same or of D’s character for violence.) NO PROSECUTOR HOMICDE EXCEPTION.

Front 7

Character Evidence, Method of Proof

Back 7

[A] Once the admissibility of character evidence in some form is established, the appropriate method of proof must be determined. [B] 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. [C] On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct. [D] 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.

Front 8

Character Evidence, Method of Proof, California, Evidence Type

Back 8

California is different than federal. Defendant’s character = NEVER prior acts. Victim’s character = Prior Acts OK for direct AND cross.

Front 9

Character Evidence, Method of Proof, Opinion/Reputation

Back 9

[A] Whether a witness knows enough to give reputation testimony raises an issue of personal knowledge. [B] The witness must qualify to give an opinion by showing such acquaintance with the defendant, the community in which he has lived and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded. [Need not be personally acquainted.]

Front 10

California

Back 10

Prop. 8 DOES NOT change these rules