Evidence - Character Part 2 Flashcards
Civil Cases; Conformity Not Allowed; Distinguishing Habit Evidence
Evidence to prove conduct in conformity/propensity is NOT permitted in civil cases.
Unlike in criminal cases, the civil D can’t introduce character evidence for conduct in conformity in a civil case. Because there’s less at stake in a civil case. It’s just money.
EXCEPTION - evidence of habit is admissible to show that someone acted in accordance with their habit. For conduct in conformity, habit evidence comes in even in civil cases. So you must distinguish character from habit, because character is generally disallowed but habit is allowed.
Habit Evidence
Habit = a person’s regular response to a specific set of circumstances. While character is general in nature, habit is particularized. It’s a person’s frequent response. You need FREQUENCY and PARTICULARITY.
Example: “you’re a careless driver” is character, but “D always forgets to signal when he makes a left turn” is habit.
Habit evidence IS ADMISSIBLE!
Civil Cases: Character Admissible if “In Issue”
When character is a specific element of a claim or defense, it is admissible. But it is rare and only occurs in these cases:
1) Defamation Cases = necessary to establish the truth defense. Relevant to the amount of damages.
2) Negligent Entrustment, Retention, and Hiring Cases = character of person entrusted/hired is an element of that claim
3) Child Custody = parent’s character is in issue
How To Prove: opinion, reputation, or specific acts are viable in these cases to prove character. No restriction.
Independently Relevant Misconduct (“MIMIC” Evidence)
This is about someone’s crimes OR BAD ACTS offered for some other reason than to prove character, but is still relevant to prove some other thing.
Sometimes when a crime is independently relevant for a non-character purpose, the facts get weird. What if the robber in a prior case wore a Barney costume and now the robber in the current case also wore a Barney costume. The goal is to prove the identity of the perpetrator, not to prove something about character. You need an INDEPENDENT PURPOSE other than conformity/propensity.
MIMIC = stands for non-character purposes that are valid
M = Motive
I = Intent
M = absence of Mistake or accident
I = Identity / distinctive modus of operandi
C = Common scheme or plan (committing the first crime in a series tends to show you probably committed the second one too)
Make sure the defendant is actually CONTESTING the mimic purpose
MIMIC Evidence - Procedural Issues
If you’re going to use another crime or misconduct for a mimic purpose, here’s how you do it:
1) record of conviction
2) other evidence like calling witnesses or docs
If Criminal case, generally need to give notice to D if D requests
Before MIMIC evidence goes to jury, need to establish D actually committed the misconduct. What burden of proof do you need to satisfy that D did it? “Sufficiency” standard, kinda easy. Just need evidence sufficient to support jury finding. Judge decides that. Evidence must pass usual 403 balancing test (probative value must not be substantially outweighed by risk of unfair prejudice or unfair dangers).
Rape Shield Rules for Sexual Assault Victims
In limited circumstances, criminal D may introduce V’s character traits. But there are exceptions.
Rape Shield: even if V’s sexual behavior shows conduct in conformity, this propensity evidence is barred. Opinion or reputation testimony about V’s sexual disposition or behavior is generally inadmissible to protect sex crime victims.
EXCEPTIONS where it may be admitted:
1) specific instances of sex with someone else may be used to show that that other person was the source of injury or evidence to V
2) victim’s specific instances of sex with D may be used if D is asserting consent
3) catchall/residual = evidence will be allowed if excluding it would violate D’s constitutional rights
Rape Shield in Civil Cases
The court may admit evidence of V’s sexual behavior if its probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party. Basically in civil case based on sexual assault, their behavior is only admissible if court decides its really important to the case and isn’t super prejudicial.
Defendant’s Other Acts of Sexual Misconduct or Child Molestation
Applies to D in criminal case or any party in civil case (usually D). In these cases, court may admit other specific acts of sexual misconduct including propensity to commit sex crimes for any relevant purpose.
This means that the general rules go out the window. When faced with issues of sexual assault or child molestation, the rationale is that predators do have a real propensity to engage in that conduct.
This is an exception to all of the normal rules.
Procedural - proponent must provide pre-trial notice of intent to offer this evidence. Burden of proof is same for MIMIC evidence (sufficient to provide jury finding)
