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43 Cards in this Set

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Categories of character evidence
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)
Rule 405(b)
Proof of character or reputation as elements
Rule 405(b) stmt.
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.
When is rule 405(b) available in a criminal case?
almost never, except for entrapment, where defendant must prove that she lacked a predisposition to commit the crime.
when is rule 405(b) available in a civil case?
defamation, negligent entrustment, child custody, amount of damages (loss of consortium, lost wages, pain suffering in wrongful death cases)
Proof of conduct by propensity uses which rules?
404(a) and 405(a)
Rule 404(a) Stmt
Generally, unless the D opens the door, 404(a) prohibits propensity type evidence.
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 trait. 404(a)
Exceptions under rule 404(a)Defendant or victim in a criminal case
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.
Rule 404 Title
Character Evidence; Crimes or Other Acts
Prohibited use of character evidence is?
not admissible to prove that on a particular occassion the person acted in accordance with that character or trait
Exceptions to the use of character evidence (criminial cases) #1 - defendants trait
defendant may offer evidence of the defendant's pertinent trait
if admitted
the prosecutor may offer evidence in rebuttal 404(a)(2)(A)
Exceptions to the use of character evidence (criminial cases) #2 Victims trait
a defendant may offer evidence of an alleged VICTIM's pertient trait
(i) offer evidence to rebut it
AND
Exceptions to the use of character evidence (criminial cases) #3 Homocide case
the prosecutor may offer evidence of alleged victims of peacefulness to rebut that the victim was the first aggressor.
Exceptions to the use of character evidence (witnesses character) #4
evidence of a witnesses character may be admitted under rules 607
Rule 404(b) Title
Crimes
prohibited uses under 404(b)(1)
evidence of a crime
permitted uses under 404(b)(2)
evidence may be admissible for another purpose such as:
to use evidence under 404(b)(2) you must? (2 things)
provide reasonable notice of the evidence the prosecutor intends to use AND
do so before trial
or during trial if the court excuses lack ot pretrial notice.
Rule for methods of proving character is?
Rule 405
Rule 405 Title
Methods of proving character
405(a)
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.
405(b)
By specific instances of conduct- when a person's character or character trait is an ESSENTIAL ELEMENT OF A CHARGE
If defendant introduces evidence of his own good character...
then the prosecutor can introduce evidence of the defendant's bad character for the same character trait.
If defendant introduces evidence of the victim's bad character...
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
If defendant introduces evidence that the victim in a homocide case was the first aggressor
then the prosecutor can introduce evidence of the victim's peaceful character.
406 Title
Habit; Routine Practice
406
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.
Rule 405(a) when evidence of a person's character or character trait is admissible, it may be proved by...
1. testimony about the person's REPUTATION or by testimony in the form of an OPINION.
On cross examination of a character witness, the court may allow...
an inquiry into RELEVANT specific instances of the person's conduct &* there must be a good faith belief that the specific instances occured.
Rule 404(b) Title
Proof of other acts for NON-PROPENSITY purposes
Rule 404(b) stmt.
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.
Other purposes under 404(b) are..
1. motive
2. opporutnity
3. INTENT
4. preparation
5. plan
6. knowledge
7. IDENTITY
8. absence of mistake
9. lack of accident
other purpose 404(b) - motive example.
offer of proof that defendant's accumulated tax liablities as motive to burn his warehouse for insurance proceeds
other purpose 404(b) - opportunity example.
evidence that the defendant had access to a protected place or to special tools
other purpose 404(b) - intent example.
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
other purpose 404(b) - knowledge example.
evidence of another crime that suggests defendant possessed knowledge of a particular fact that is an element of the crime charged
other purpose 404(b) - Identity example.
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
other purpose 404(b) - lack of accident example.
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
Proceedure for intoducing other acts for a non-propensity purpose
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.