Character Evidence

Question 1

PRIOR, SIMILAR OCCURRENCES

General rule

Answer 1

= must relate to time, event, or person in controversy to be admissible

If evidence concerns a time/event/person other than the one involved in the case at hand = inadmissible

Question 2

PRIOR, SIMILAR OCCURRENCES

6 exceptions

Answer 2

1. Plaintiff’s accident history
2. Same event or condition
3. Intent at issue
4. Comparable sales
5. Personal habit or industrial/business routine
6. Industrial custom as SOC

Question 3

PRIOR, SIMILAR OCCURRENCES

Plaintiff’s accident history admissibility

Answer 3

Admissible

1. ONLY IF the cause of the plaintiff’s injury is at issue
2. BUT ONLY to show that they were the cause of the injury, not the accident that the plaintiff is suing over

Question 4

PRIOR, SIMILAR OCCURRENCES
Similar accidents caused by the same event or condition
admissibility

Answer 4

Admissible to prove 3 propositions

1. That a defect or dangerous condition existed
2. That the defendant had knowledge of the defect or dangerous condition
3. That the defect or dangerous condition was the cause of the present injury

Question 5

PRIOR, SIMILAR OCCURRENCES

Intent is at issue admissibility

Answer 5

Previous similar acts admissible to prove

• the party’s present motive or intent
• when such elements are relevant

Question 6

PRIOR, SIMILAR OCCURRENCES

Comparable sales to prove value admissibility

Answer 6

The selling price of other property

• Of similar type
• In the same general location
• And close in time to the period at issue

= can be admissible to prove property at issue to prove value

Question 7

PRIOR, SIMILAR OCCURRENCES

Habit admissibility

Answer 7

Admissible to prove that

• on a particular occasion
• the person acted in accordance with the habit

= Must be shown to be a regular response to a repeated specific situation

RULE 406

Question 8

Habit

DEFINITION

Answer 8

one’s regular response to a specific set of circumstances

RULE 406

Question 9

Habit

CHARACTERISTICS

Answer 9

1. frequency
2. particularity

RULE 406

Question 10

PRIOR, SIMILAR OCCURRENCES

Routine admissibility

Answer 10

• Same as evidence of personal habit relevant to show conduct

= Evidence that a business or firm had an established business routine is relevant as tending to show that a particular event occurred

Question 11

Habit

COMPARATIVE DEFINITION + EXAMPLE

Answer 11

Habit = more specific and particularized than character

Example = she always take a staircase two steps at a time

Question 12

Character

COMPARATIVE DEFINITION + EXAMPLE

Answer 12

Character = one’s disposition in respect to general traits

Example = she’s always in a hurry

Question 13

Frequency

Answer 13

= repetitive response

Question 14

Particularity

Answer 14

= specific circumstance in which it occurs

Question 15

PRIOR, SIMILAR OCCURRENCES

Industrial custom as SOC

Answer 15

Evidence of general custom or usage

• May be introduced by either party
• To establish a standard by which reasonable/ordinary care may be judged WHEN
  a. General custom/usage is of the same kind of business
  b. Under the same circumstances AND
  c. One of the issues in dispute is negligence arising out of inadequate safety devices or precautions

Question 16

How is evidence of general custom as evidence of SOC treated?

Answer 16

ADMISSIBLE but not conclusive

Question 17

Business routine

COMPARATIVE DEFINITION

Answer 17

= particular conduct and habit of a party offered to show that the party acted in same manner on the occasion in question

Question 18

Custom of the industry

COMPARATIVE DEFINITION

Answer 18

= offered to prove the actions of other persons in the same industry in an attempt to show adherence to or deviance from an industry-wide standard of care

Question 19

3 considerations in allowing

CHARACTER EVIDENCE

Answer 19

1. Purpose for which evidence of character is offered
2. The method to be used to prove character
3. The kind of case = civil or criminal

Question 20

3 potential purposes of

CHARACTER EVIDENCE

Answer 20

1. To prove character when character itself is ultimate issue in case
2. To serve as circumstantial evidence of conduct on a particular occasion
3. To impeach credibility with the witness’ poor character for truthfulness

Question 21

CHARACTER EVIDENCE

general rule

Answer 21

• 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

Question 22

3 types of

CHARACTER EVIDENCE

Answer 22

1. specific acts
2. opinion
3. reputation

RULE 405

Question 23

Specific Acts

DEFINITION

Answer 23

= evidence of specific acts as demonstrating character

Question 24

Specific Acts

KEY TAKEAWAYS

Answer 24

• Permitted only in a few instances

- May be admissible if relevant for some other purpose

Question 25

Specific Acts | EXAMPLE

Answer 25

where character is itself at issue

Question 26

Specific Acts | FOUNDATIONAL REQUIREMENTS

Answer 26

1. Witness testifies that they are familiar with a pertinent specific act or instance of conduct committed by the person whose character is at issue 2. Witness testifies as to the foundational factors that demonstrate personal knowledge of the act 3. Witness testifies as to the act itself

Question 27

Opinion | DEFINITION

Answer 27

= witnesses who know the person testify regarding their opinions about the person’s character

Question 28

Opinion | FOUNDATIONAL REQUIREMENTS

Answer 28

1. Witness testifies they have known the person whose character is at issue for a particular length of time 2. Witness testifies that during that time, the witness has had an opportunity to form an opinion of the person as to a pertinent character trait 3. Witness testifies as to their opinion, but without revealing specific incidents that helped reach the opinion

Question 29

Reputation | DEFINITION

Answer 29

= testimony as to person’s general reputation in community

Question 30

Reputation | KEY TAKEAWAY

Answer 30

Most common means of showing character

Question 31

Reputation | FOUNDATIONAL REQUIREMENTS

Answer 31

1. The witness belongs to a certain community - Broadly defined - Includes towns, cities, workplaces, social organizations, military units etc. 2. The person whose character is at issue also belongs to that community 3. The witness testifies that the person has developed a reputation in the community for a “pertinent” character trait 4. The witness testifies as to the reputation

Question 32

What is the general rule for using character evidence to impeach the witness's poor character for truthfulness?

Answer 32

In civil or criminal case, that witness is subject to impeachment with evidence of poor character for truthfulness

Question 33

Truthfulness

Answer 33

= propensity to lie on the witness stand

Question 34

Methods of using character evidence to impeach the witness's poor character for truthfulness

Answer 34

1. Character witness could testify as to witness’s poor character for truthfulness 2. Character witness could testify as to witness’s reputation in the community 3. Evidence of certain kinds of prior bad acts

Question 35

Types of certain kinds of prior bad acts | METHOD OF IMPEACHMENT OF WITNESS'S POOR CHARACTER FOR TRUTHFULNESS

Answer 35

1. Kinds of criminal convictions - Felonies - Misdemeanors and felonies that involve dishonesty or false statement 2. Only admissible to impeach witness for character of truthfulness - Must still weigh against prejudicial nature in 403 balancing test 3. Evidence of other bad acts involving deceit or lying - Can only be proven by asking the witness, not other documents or witnesses - Must accept her answer

Question 36

When can you use character evidence to serve as circumstantial evidence of conduct on a particular occasion IN CRIMINAL CASES?

Answer 36

1. Character of defendant | 2. Evidence of victim's character

Question 37

Character of D in criminal case | CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION

Answer 37

- Prosecutor cannot offer evidence of D's bad character to show that she acted in conformity with that character AS PART OF CASE IN CHIEF - D can choose to offer evidence of good character trait and that she acted in conformity with that trait on occasion in question - Prosecutor can offer evidence to REBUT if defendant chooses to present evidence of defendant’s own character

Question 38

What happens when criminal D chooses to offer evidence of character trait and that she acted in conformity with that trait on occasion in question?

Answer 38

Opens the the door to prosecution rebuttal

Question 39

2 permissible forms of prosecution rebuttal in criminal case | CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION

Answer 39

1. Can cross-examine D’s character witness | 2. Can call its own character witness

Question 40

What is allowed when prosecution calls its own character witness to rebut criminal D's evidence of character trait to prove acting in conformity with that trait on occasion in question?

Answer 40

Can give - Reputation AND/OR - Opinion testimony - About D’s relevant trait

Question 41

When D's character witness gives reputation testimony, what questions must prosecution use to on cross to rebut in criminal case? CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION

Answer 41

When character witness gives reputation testimony = have you heard questions are used RULE 405 = testing a witness’s testimony

Question 42

When D's character witness gives opinion testimony, what questions must prosecution use to on cross to rebut in criminal case? CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION

Answer 42

When character witness gives opinion testimony = did you know Qs are used RULE 405 = testing a witness’s testimony

Question 43

When must prosecution use "have you heard" Qs while cross-examining D's character witness in criminal case? CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION

Answer 43

When character witness gives reputation testimony = have you heard questions are used RULE 405 = testing a witness’s testimony

Question 44

When must prosecution use "did you know" Qs while cross-examining D's character witness in criminal case? CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION

Answer 44

When character witness gives opinion testimony = did you know Qs are used RULE 405 = testing a witness’s testimony

Question 45

KEY TAKEAWAYS Cross-examining criminal D's character witness to rebut CHARACTER EVIDENCE AS CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION

Answer 45

Using have you hear or did you know questions to ask about specific acts that run counter to reputation or opinion testimony 1. Must have a good faith basis to believe that the specific acts are true 2. Must be prepared to make an offer of proof to the judge and opposing counsel 3. Must be relevant to trait relevant to alleged crime 4. Must take witness’s answer (AKA cannot admit additional evidence to rebut answer)

Question 46

When is evidence of victim's character permissible in criminal cases to serve as CIRCUMSTANTIAL EVIDENCE OF CONDUCT ON PARTICULAR OCCASION?

Answer 46

Permissible only in self-defense cases

Question 47

How may criminal D introduce evidence of victim’s violent character?

Answer 47

1. in a self-defense case 2. to prove conduct in conformity with that violent character on the occasion in question (AKA that the victim was first aggressor) 3. by calling character witness 4. to give reputation and/or opinion testimony 5. about that character trait

Question 48

How may prosecution introduce evidence of victim's character in a criminal case?

Answer 48

1. If D chooses to offer evidence of victim's violent character 2. prosecution may rebut with 3. victim's good character and/or D's bad character 4. by calling a character witness 5. to give reputation and/or opinion testimony 5. about that character trait

Question 49

When can character evidence be used to serve as circumstantial evidence of conduct on particular occasion in CIVIL CASES?

Answer 49

Rule = Character evidence to prove conduct in conformity is NOT PERMITTED

Question 50

Rape shield laws

Answer 50

policy-based protections for victims of sex crimes

Question 51

Victim

Answer 51

definition includes alleged victims

Question 52

RAPE SHIELD RULE

Answer 52

Prohibited uses of victim’s character in sexual misconduct cases in CIVIL OR CRIMINAL case involving alleged sexual misconduct 1. Evidence offered to prove that a victim engaged in other sexual behavior or 2. Evidence offered to prove a victim’s sexual predisposition RULE 412

Question 53

Other sexual behavior

Answer 53

Includes 1. Actual sexual activity 2. Conduct that suggest or implies sexual activity and 3. Evidence of sexual fantasies and activities of the mind

Question 54

Rape shield rule | EXCEPTIONS IN CRIMINAL CASES

Answer 54

In criminal case, court may admit 1. Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence 2. Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor and 3. Evidence whose exclusion would violate the defendant’s constitutional rights RULE 412

Question 55

Rape shield rule | EXCEPTIONS IN CIVIL CASES

Answer 55

In civil case, court may admit 1. evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party 2. evidence of a victim’s reputation only if the victim has placed it in controversy RULE 412

Question 56

To offer evidence of victim's past behavior, what must a party do? RAPE SHIELD RULE PROCEDURAL REQUIREMENTS

Answer 56

To offer evidence of victim’s past behavior, party must 1. File a motion 14 days before trial, Describing the evidence and its purpose 2. And serve the motion on all parties 3. And notify the victim RULE 412

Question 57

Before admitting the evidence, what must the court do? | RAPE SHIELD RULE PROCEDURAL REQUIREMENTS

Answer 57

Before admitting the evidence, the court must 1. conduct an in camera hearing 2. And afford the victim and the parties a right to be heard RULE 412

Question 58

When is character in issue?

Answer 58

character is “in issue” when the substantive law must give the party no choice but to prove character if the claim or defense is to be substantiated

Question 59

May character be an element in criminal and/or civil cases?

Answer 59

1. Character is never an element in criminal case | 2. Character can be element in civil case

Question 60

Types of cases courts have found character evidence to be an essential element

Answer 60

Courts have found character evidence essential in the following types of cases 1. The character of the plaintiff in a libel or defamation case, 2. Character of an employee in a negligent hiring case, 3. Character of the entrustee in a negligent entrustment case, and 4. Character of the parents in a child-custody case

Question 61

Rule in civil cases | CHARACTER EVIDENCE TO PROVE CHARACTER WHEN CHARACTER ITSELF IS ELEMENT

Answer 61

= 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

Question 62

Analysis for specific acts evidence in civil cases | CHARACTER EVIDENCE TO PROVE CHARACTER WHEN CHARACTER ITSELF IS ELEMENT

Answer 62

1. Is character or a trait of character the basis for an inference to prove conforming conduct? - YES = general prohibitions of FRE 404(a) apply - NO = Q2 2. Is character or a trait of character is an essential element of a party’s case? - YES = character is “in issue” and the general prohibitions of FRE 404(a)(1) do not apply

Question 63

``` FRE 404(a)(1) - Prohibited Uses CHARACTER EVIDENCE ```

Answer 63

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

Question 64

SPECIFIC ACTS OF MISCONDUCT | general rule

Answer 64

when a person is charged with one crime, extrinsic evidence of her other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition

Question 65

SPECIFIC ACTS OF MISCONDUCT | exceptions

Answer 65

1. Independent relevance | 2. Prior acts of sexual assault or child molestation

Question 66

SPECIFIC ACTS OF MISCONDUCT | permissible non-character uses - general exception

Answer 66

admissible if independently relevant = - may be used to prove something more specific than just bad character - BUT D must be actually contesting what evidence is used for RULE 404(b)

Question 67

SPECIFIC ACTS OF MISCONDUCT | permissible non-character uses - mneumonic

Answer 67

MIMIC RULE 404(b)

Question 68

SPECIFIC ACTS OF MISCONDUCT | permissible non-character uses

Answer 68

1. Motive 2. Intent 3. Mistake or accident, absence of 4. Identity 5. Common scheme or plan = MIMIC RULE 404(b)

Question 69

SPECIFIC ACTS OF MISCONDUCT | permissible non-character uses - huddleston rule

Answer 69

= Huddleston Rule - Independently relevant uncharged misconduct by the D will be admissible - Without a preliminary ruling - As long as 1. There is sufficient evidence to support a jury finding that the D committed the prior act AND = RULE 401 STANDARD 2. Its probative value on the issue of motive, intent, identity, or other independently relevant proposition is not substantially outweighed by the danger of unfair prejudice = RULE 403 TEST RULE 401 STANDARD + RULE 403 TEST

Question 70

SPECIFIC ACTS OF MISCONDUCT | permissible non-character uses - special RULE 404(b) balancing analysis

Answer 70

1. Is there a risk the evidence leads to an inference that the person had a propensity to behave in a certain way as a result of his or her character? 2. Is there another purpose for which the evidence could be offered, other than the propensity inference? 3. How effective will a limiting instruction be in containing the risk of unfair prejudice? 4. Will the risk of unfair prejudice substantially outweigh the probative value of the evidence? (Some courts reverse the traditional 403 analysis here, requiring the acts evidence must be more probative than prejudicial to be admitted)

Question 71

When has the Court previously found a D presumed to be protected against undue prejudice? SPECIFIC ACTS OF MISCONDUCT permissible non-character uses

Answer 71

The Court has previously found that D is presumed to be protected against undue prejudice if: 1. The evidence is offered for a proper purpose, 2. The evidence is relevant, 3. .The trial court made a FRE 403 determination, AND 4. The trial court, upon request, instructed the jury that the evidence was to be considered only for the proper purpose for which it was admitted

Question 72

RULE 404(b) KEY TAKEAWAYS

Answer 72

1. Although often used to admit criminal acts, the rule is NOT limited to crimes (includes wrongs and acts, applies to both criminal and civil cases) 2. The other act need not be “similar” to the current criminal offense or civil claim 3. The other act need not have occurred prior to the charged offense 4. The accused may offer evidence under FRE 404(b) to show that another person committed the charged crime

Question 73

SPECIFIC ACTS OF MISCONDUCT | prior acts of sexual assault or child molestation - general exception

Answer 73

Rule = - Evidence of a defendant’s prior acts of sexual assault or child molestation is admissible - in a civil or criminal case - where the defendant is accused of committing an act of sexual assault or child molestation RULES 413-415

Question 74

SPECIFIC ACTS OF MISCONDUCT | prior acts of sexual assault or child molestation - procedural requirement

Answer 74

The party who intends to offer this evidence must - disclose the evidence to D - 15 days before trial - or later with good cause RULES 413-415