Chapter 5

Question 1

Character evidence is generally ____ _________

Answer 1

NOT ALLOWED

Question 2

How can criminal defense counsel unlock the general character evidence rule that it’s not allowed?

Answer 2

1.

2.

Question 3

Once other party unlocks the character evidence rule? What kind of testimony can they use concerning character?

Answer 3

ONLY opinion or reputation testimony. No specifics

Question 4

Character Evidence definition

Answer 4

evidence of a GENERAL moral trait of a person. offered to prove conforming conduct on a particular occasion. This is NOT what a person did that one time. This is “oh he’s a nice/honest/violent/dishonest/drunk” guy. Character traits that have no specifics to them.

Question 5

How to circumvent character evidence rule?

Answer 5

Talk about the specifics.

Also, by bringing up habits. “do you usually put in your cereal AFTER the milk?” (heathens!)

Question 6

Exceptions where Character Evidence is ALLOWED

Answer 6

1. Very rarely in civil cases but where character is an ELEMENT (e.g. compel the bar association to give you your license back bc you’re a person of good character)
2. Impeaching a witness for a poor veracity trait (but theres other, less risky, ways to impeach a witness like a prior inconsistent statement and prior convictions)

Question 7

Can the prosecution open the door of character of the accused?

Answer 7

NO

Question 8

Can the defense open the door of character evidence?

Answer 8

YES. The defense can introduce good character of the accused or bad character of victim if relevant. BUT this opens the door for the prosecution to rebut it. THIS IS IN JUST CRIMINAL NOT CIVIL

Question 9

ONCE the door has been opened by the defense in a criminal case, what form of character evidence is allowed?

Answer 9

ON DIRECT - by opinion or reputation only, no specific instances allowed

ON CROSS - specifics are allowed.

Remember that the prosecution, once the door has been opened, can rebut the evidence

Question 10

Rule 404(b) - Crimes Wrongs or Other Acts

Answer 10

CANT allow evidence of a crime, wrong, or other act in order to prove a person’s character in order to show that on a particular occasion, the person acted in accordance with the character

Question 11

Rule 404(b) - Crimes Wrongs or Other Acts - EXCEPTION

Answer 11

CAN allow evidence of a crime, wrong, or other act in order to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. MUST BE SPECIFIC. Example: I am not saying this guy is awful, I’m sure he had good reasons to electrocute his wife, but this is used to prove his MO that the last 3 wives died by “accidental” electrocution (highly specific and this purports to prove non-accident).

Question 12

Difference between 404(b) evidence and Character evidence

Answer 12

404(b) evidence is specific pattern evidence - allowed

Character evidence addresses the defendant’s general propensity - not allowed

Question 13

Example of admissible pattern evidence.

Answer 13

CHARGE: BANK ROBBERY BY D
WITNESS: CULPRIT HAD ORANGE SKI MASK AND A BRASS-INLAID SHOTGUN IN LEFT HAND
OTHER EV. SHOWING THIS D HAS ROBBED THREE OTHER BANKS, ALWAYS WITH AN ORANGE SKI MASK ON, AND A BRASS-INLAID SHOTGUN IN HIS LEFT HAND
IS ALLOWED, IF OFFERED TO SHOW IDENTITY OF CULPRIT
If this is objected to on character grounds, it will be overruled bc the defendant’s character isn’t being attacked, this is for identification

Question 14

Rule 406 - Habit; routine practice

Answer 14

Evidence of a person’s habit or routine practice may be admitted to prove that on a particular occasion, the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless whether it is corroborated or whether there was an eyewitness.

Question 15

What is habit evidence?

Answer 15

Very specific pattern evidence, similar to criminal pattern evidence 404(b).

Automatic, unreflective conduct, usually with no moral judgement involved. NOT character evidence.

Question 16

Examples of Habits

Answer 16

WALKING ON SHADY SIDE OF STREET
TYING LEFT SHOE FIRST
KEEPING UTILITY BILLS IN KITCHEN DRAWER

THESE PATTERNS ARE SPECIFIC AND HENCE ADMISSIBLE AS HABITS

Question 17

Habit v Character Evidence

Answer 17

“He always drives carefully” - general > not allowed

“He never leaves keys in the car” specific pattern that does not go into their moral character > allowed

ALWAYS FOLLOWING DIRECTIONS ON OPENING OF CANISTERS OF COMPRESSED GAS [ALLOWED; SPECIFIC PATTERN] - HABIT

ALWAYS BEING “CARELESS ABOUT SAFETY” [NOT ALLOWED; GENERAL CHARACTER]

Question 18

R 412 - Victim’s Sexual Assault Behavior

Answer 18

Victim’s Sexual Conduct on other occasions is now limited to:

1. Acts with this defendant (if offered by defendant to prove consent in a criminal case)
2. Near - term acts with others to show others are the source of observed scratches, bruises, or other physical conditions. (criminal)

Question 19

Is general “slut” evidence admissible?

Answer 19

NO. R 412 does not allow general slut reputation. No opinion, no reputation.

Question 20

R 412 - Victim’s Sexual Assault behavior - exception in civil trials

Answer 20

PRIOR SEXUAL HISTORY IS OK IF OTHERWISE ADMISSIBLE (NO HEARSAY), BUT SUBJECT TO JUDGE WEIGHING PROBATIVENESS vs. HARM TO VICTIM (PLAINTIFF)

AGAIN SLUT-REPUTATION EVIDENCE IS NOT ALLOWED; JUST THE FACTS

Question 21

R 412(c) - Procedure to allow admissibility

Answer 21

Party that wants to bring in evidence under the 412 exception, then the party must 1. file a motion that specifically describes the evidence and states the purpose for which it is to be offered

2. do so at least 14 days before trial unless court says otherwise
3. serve the motion on all parties
4. notify the victim or when appropriate the victim’s guardian or representative.

The court must also hold an in camera hearing and give the victim and parties a right to attend and be heard.

Question 22

Bad guy propensity rules for sexual assault or child molestation cases (R 413-415). When are instances of sexual assault allowed?

Answer 22

CRIMINAL CASE (also applies in civil)
Accused of a sexual assault

Instances of sexual assault ARE allowed even if no pattern. DOESNT have to be a conviction, can be witness testimony. Only recourse we have left is if it can be kept out by rule 403

Question 23

R 407 - Subsequent remedial measures (“I’ll pay for the damages”)

Answer 23

NOT admissible to show negligence, fault etc.

HOWEVER it IS admissible to prove other things i.e. ownership, control (“That’s not my house”), or feasibility of better condition or design (“I did everything physically possible before the incident”)

Question 24

When has the 407 rule been waived?

Answer 24

If the defendant makes a claim that their facility was perfect and nothing was done incorrectly, the opposing side can come in with the remedial measures evidence NOT to show guilt but to show better condition or design

Question 25

R 408 - Failed Settlement Discussions. Evidence of settlement is NOT admissible when . . .

Answer 25

it is used to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction

Question 26

What exactly is inadmissible under R408? Are there exceptions?

Answer 26

Comments made during settlement talks, terms of settlement proposals. BUT any statements made during can be used by counsel to shape discovery and trial testimony if settlement fails

Question 27

What is required in order to come under protection of R 408?

Answer 27

In order to come under protection of R 408, there must be 1. A claim asserted "OY YOU OWE ME MONEY" don't need to be formal 2. The claim must be "disputed" in some way.

Question 28

Comments made during failed settlement can be admitted to show _________. (Two examples)

Answer 28

Points other than liability. 1. To prove bias or prejudice of a trial witness ("I hate you!" was said at settlement) 2. Negate a contention of undue delay (Chain of settlement discussion, basically explaining why you've delayed so long to bring the suit) 3. Proving an obstruction charge.

Question 29

Give an example of using what was discussed in a settlement (even successful one!) as admissible evidence in order to prove an obstruction charge

Answer 29

Lets say settlement was successful. One of the settlement terms was to destroy all the evidence as soon as the payment was made. This is obstruction of civil justice. Then when prosecution comes to get you, prosecution can dig into everything. Martha Stewart went to jail for it. Can be simple as testimony "He said it at settlement! Let's keep all this from the feds and lets destroy the evidence."

Question 30

R 410 - Criminal Guilty Plea - Guilty Plea

Answer 30

Admissible

Question 31

R 410 - Criminal Guilty Plea - Nolo Plea

Answer 31

Inadmissible

Question 32

R 410 - Criminal Guilty Plea - Withdrawn pleas of guilty or nolo

Answer 32

inadmissible

Question 33

R 410 - Criminal Guilty Plea - Statements during the court's taking of a guilty plea

Answer 33

admissible for a guilty plea, inadmissible for a nolo plea and a withdrawn plea

Question 34

R 410 - Criminal Guilty Plea - Statements during the court's taking of a not-guilty plea

Answer 34

inadmissible

Question 35

R 410(4) - failed plea bargain discussions - What remarks of the defendant are inadmissible?

Answer 35

REMARKS OF D. ARE INADMISSIBLE: ONLY IF HE IS SPEAKING TO A PROSECUTING ATTORNEY (or an agent of the prosecuting attorney, arresting officers don't count), AND ONLY IF THE TOPIC IS PLEA BARGAINING (if the topic is about what is wrong with the indictment or the defendant says "please don't tell my wife" its admissible N.B.: TALKS WITH ARRESTING OFFICERS DO NOT QUALIFY, AND ARE ADMISSIBLE

Question 36

What is protected concerning discussions of a failed plea bargain (besides remarks of the defendant)?

Answer 36

ONLY WHAT IS SAID IN THE ROOM IS PROTECTED

Question 37

If the defense talks to others about the failed plea bargain, or about the facts, is this talk protected?

Answer 37

No, whatever is said to the press, is admissible.

Question 38

If a defendant testified in reliance of the failed plea bargain but pleads not guilty, then is the testimony protected?

Answer 38

The testimony is not protected but the plea discussion is

Question 39

R410(b)(2) - If defendant pleads "not guilty" and testifies in court to part of what he said in the plea bargain meeting what occurs?

Answer 39

DEFENSE WAIVES THE PROTECTION

Question 40

Offer to Pay Injured Person's Medical Expenses

Answer 40

NOT ADMISSIBLE to show LIABILITY or AMOUNT. This exclusion DOES NOT require that a prior claim has been made.

Question 41

Is an offer to pay an injured person's medical expenses a settlement offer?

Answer 41

NO

Question 42

Insurance Coverage

Answer 42

NOT ADMISSIBLE to show LIABILITY or AMOUNT.

Question 43

When is Insurance Coverage admissible?

Answer 43

When it is showing ownership of a vehicle, apartment building, etc. OR when it is action to recover on a policy.