New Character Evidence Cards

Front 1

1. When can you offer Reputation or Opinion Evidence about the accused in Federal Court?

Back 1

a. In a CRIMINAL CASE:

1. The D can offer reputation or character evidence of his own character (Evidence from D or other character witness)

2. Once the D opens the door, the prosecution can offer Reputation or Opinion evidence through their own character witness; OR

a. Can cross D’s witness with specific instances of Ds bad character (Have you Heards)

3. Special Rebuttal: If P puts on own character witness to rebut Ds witness (as to either his own character or that of the accused), then D can cross with specific instances of Ds good character (Have you Heards)

4. Also, P can put on Reputation or Opinion Evidence of any trait that D attacks Victim with.

Front 2

2. When can Character Evidence of the D be brought up in Texas?

Back 2

a. In the same was as in Fed, but can also be used in civil cases involving crimes of moral turpitude.

Front 3

3. What are the consequences to the D if he puts his own character at issue?

Back 3

a. Prosecution can put on own rebuttal evidence of bad character

b. P can cross D’s witness with “have you heard” questions about specific instances

Front 4

4. What are the limits on Have you heard Qs?

Back 4

a. Relevance
i. Must be the trait talked about on direct

b. Limiting Instruction

c. Good faith basis

d. Must take answer
i. Can’t bring in extrinsic evidence if the witness denies

e. Rule 403

Front 5

5. When can evidence of the Victim’s character trait be brought up in Federal court?

Back 5

a. In a criminal Case:

i. The D can bring in reputation or opinion evidence of a victim (through character witnesses, including the D himself)

ii. The prosecution can bring in reputation or opinion evidence of the victim (through other character witnesses) to rebut the evidence brought in by the accused.; OR

iii. The P can cross examine Ds witnesses with specific instances of the victim’s good character (Have you heards)

iv. If the P brings in Rebuttal witnesses that testify as to the Victim’s good character, then D can cross with specific instances of the Victim’s bad character (have you Heards)

v. Also, in Fed in a Homicide case, P can bring up evidence of victim’s character for PEACEFULLNESS to rebut ANY evidence that the Victim was the first aggressor (In this case, D does not have to open the door).

Front 6

6. When can character Evidence of the Victim be brought up in State?

Back 6

a. The same as in fed except also in the civil assault cases:

i. evidence of a V’s character for violence can be offered on the issue of self defense by the D accused of assault; or

ii. Evidence of peacefulness to rebut the same.

Front 7

7. What are some ways a D can show self defense?

Back 7

a. Character evidence to show victim’s propensity for violence
i. Can only use reputation or opinion evidence
ii. D need not have known about this
iii. Opens the door for P to prove peacefulness of victim and to attack the same trait of D’s (fed)

b. Show victim’s intent, motive, state of mind
i. This is 404(b)- not propensity
ii. Can use specific instances of aggression
iii. D need not have known about it
iv. 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
__Also have to give notice if requested in a criminal case

c. Show D’s state of mind and belief that he needed to protect himself
i. Not propensity
ii. Can use specific instances
iii. D has to have been aware
iv. 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

Front 8

8. When can we bring in Reputation or Opinion Evidence about a WITNESS?

Back 8

a. The credibility of a witness may be impeached by ANY party.
b. As soon as they take the stand, their character for truthfulness may be attacked.

Front 9

9. How can a witnesses character for truthfulness be attacked

Back 9

a. By opinion or reputation of TRUTHFULLNESS OR UNTRUTHFULBESS ONLY

Front 10

10. When can evidence supporting a witnesses character be admissible?

Back 10

a. Evidence SUPPORTING character admissible ONLY AFTER the character of that witness has been attacked by reputation, opinion, or OTHERWISE

b. Can’t use it to bolster credibility if it hasn’t already been attacked

Front 11

11. What is otherwise?

Back 11

a. 609 convictions (if used for truthfulness)
b. 608b to impeach with prior bad acts
c. Prior inconsistent statements
i. Maybe in Tex
ii. No in Fed

Front 12

12. How can a witnesses character be attacked in Fed?

Back 12

a. By opinion or rep evidence from another witness

b. By using specific acts (can’t be admitted through others. Only on cross)
i. Can be used to attack witnesses’ character for truthfulness
ii. To attack the character for truthfulness of another witness this witness testified to.

Front 13

13. How can a witnesses’s character be attacked in Tex?

Back 13

a. Same as federal except when it comes to specific instances

b. In Tx, specific instances cannot be brought up on cross or proved by extrinsic evidence

c. Only exception is 609 (prior conviction)

Front 14

14. In Fed, When can evidence of a conviction of a crime be admitted against a witness OTHER THAN THE ACCUSED IN A CRIMINAL CASE (INCLUDES A D IN A CIVIL CASE)?

Back 14

can only be admitted to attack character for truthfulness if…

i. FELONY (punishable by 1 year); and

ii. Passes 403
1. Assume admission unless it fails 403.
2. Burden on opposing party to say probative value subs. outweighed by unfair prejudice.

Front 15

15. In Fed, a conviction of a crime can be brought in AGAINST THE D IN A CRIMINAL CASE IF:

Back 15

a. It can only be admitted to attack character for truthfulness if:

i. It’s a felony

ii. The court determines the probative value outweighs the prejudicial effect to the accused.

iii. Sounds lower than 403, but its not b/c we start with inadmissible and put the burden on the PROPONENT to show more probative.

Front 16

In Fed, when can we show evidence of any witnesses’ conviction of any crime?

Back 16

a. We can show evidence of any witnesses’ conviction of any crime if:

i. Establishing the elements of the crime required proof or admission of an act (must be required for conviction)

ii. Of dishonesty or false statements (Crimen falsi -fraud, embesslement, etc)

Front 17

17. In Texas, when can convictions of a crime be admitted to attack credibility?

Back 17

a. A conviction shall be admitted IN A CIVIL OR CRIMINAL CASE if:

i. Felony; OR

ii. Involved moral turpitude;

AND
iii. The court determines that Probative value outweighs its prejudicial effect;

Front 18

18. What is the time limit on convictions in Fed and Sate? And what is the difference?

Back 18

a. Evidence of a conviction is NOT ADMISSIBLE if:

i. More than 10 years has elapsed from LATER of:
1. Date of conviction
2. Date of release

ii. Unless:
1. Court determines probative value, based on specific facts, substantially outweighs prejudice
a. Use specific facts to show that he hasn’t reformed!

AND

b. Proponent GIVES NOTICE of intent to use it soon enough the give opponent a chance to contest
i. Proponent has to automatically give notice (In Tex, opponent has to request notice first)
(This is the first time we balance crimen falsi convictions in fed. Before they were automatically in)

Front 19

In Texas, When can you use prior bad acts that are not convictions to attack the Credibility of a witness?

Back 19

a. You cannot use prior bad acts that are not convictions to challenge credibility. You cannot use them on cross or by extrinsic evidence

b. BUT you can use prior bad acts for impeachment for ex. if he has a prior inconsistent statement.

Front 20

20. In Fed Court, when an you use prior bad acts that aren’t convictions to attack a witnesses’ credibility?

Back 20

a. In fed you can use prior bad acts ON CROSS ONLY if
i. They concern the witness’ character for truthfulness;
ii. Or concern the character for truthfulness of another witness who this witness ahs already testified to.

Front 21

21. In Tex and Fed, When can specific instances of conduct be brought up not to prove character or to attack credibility?

Back 21

a. Specific instances of conduct aren’t admissible to prove propensity, but they may be admissible to prove:
i. Motive
ii. Opportunity
iii. Intent
iv. Preparation/plan
v. Knowledge
vi. Identity
vii. Absence of mistake or accident

Front 22

What needs to happen if someone requests info on what prior bad acts you plan on going into?

Back 22

b. IF UPON REQUEST BY THE ACCUSED, the prosecution in a criminal case provides notice of the general nature of the evidence they intend to go into (In Texas only have to give notice if you plan on going into it in case in chief, not rebuttal).
i. Must be a request first in both

Front 23

22. What is the BOP for these non-propensity prior bad acts (here, we are talking convictions and any other acts)?

Back 23

a. Fed standard → Preponderance of evidence
b. Texas standard → Beyond reasonable doubt
i. D will argue waste of time and 403
ii. Much harder in TX if don’t have a conviction