Character Evidence

Question 1

Explain 404(a)

Answer 1

(1) Provides a general exclusion of character for propensity
(2) Creates exceptions that allow D to open the door to offer evidence of D/V’s PERTINENT traits
(3) Exception for W’s character allowed as determined by 607/608/609

Question 2

What are the don’t forgets for 404(a)

Answer 2

• Character not for propensity is fair game (e.g. child custody and the like)
• The trait must be pertinent for D to be able to open the door and introduce it.

Question 3

Explain 404(b)

Answer 3

(1) Prohibition on use of past crimes/wrongs as C4P
(2) Past crimes/wrongs MAY allowed to prove motive or other non-C4P purpose
(3) Notice required in a criminal case if evidence of past wrong is to be used

Question 4

What are the key don’t forgets for 404(b)?

Answer 4

The “may” in 404(b)2 is read to infuse a 403 analysis into any evidence sought to be admitted under 404(b)2

Question 5

What is the scope of 405?

Answer 5

Only applies when a person’s character or character trait may be proven

405 supplies restrictions on specific acts

Question 6

Explain 405

Answer 6

405(a) When proving character, Rep/Opinion are always allowed. Specific acts allowed on cross of a W already on the stand

405(b) When a person’s character or character trait are an essential element of the charge/claim/defense, specific acts are allowed

Question 7

Key don’t forgets for 405

Answer 7

405 (restrictions on specific acts) only applies when proving character or a character trait.

Does not apply when past acts are proven for some other purpose (e.g.404(b)2 to prove motive)

Question 8

Explain 406

Answer 8

Evidence of habit is allowed (and is not considered to be proving character

Question 9

Explain 412?

Answer 9

Can’t offer evidence of V’s sexual disposition or past sexual acts as substantive or impeachment evidence unless an exception applies

Question 10

What are the exceptions to 412(a) for criminal cases?

Answer 10

The following evidence MAY (implied 403) be admitted:

• specific instances to prove someone other than D was source of physical evidence
• specific instances of V’s prior sex with D if offered by D to prove consent or if offered by P
• required by the constitution

Question 11

What are the exceptions to 412(a) in civil cases? (and the key limitation on that exception)

Answer 11

The following evidence MAY (implied 403) be admitted:
- evidence of V’s sexual behavior/predisposition if probative value substantially outweighs harm to any victim and of unfair prejudice to any party.

Court may only admit evidence of V’s reputation if V placed it in controversy.

Question 12

When do 413-414 apply? When does 415 apply?

Answer 12

In criminal cases were D is accused of sexual assault or child molestation and has a history of the same

Question 13

Explain 413-414

Answer 13

(a) In criminal cases where D is accused of sexual assault or child molestation and has a history of the same (regardless if only alleged or actually proven)
(b) disclosure of the proffered evidence to D in advance required

Question 14

What are the key don’t forgets about 413-414?

Answer 14

To admit the prior history of sexual assault/child molestation, the assailant must actually be the defendant in the case.

No requirement that allegations be proven

Altered 403 test likely applies so that the statute actually makes a difference

Blatant C4P

Question 15

Explain 415

Answer 15

Applies 413-414 to civil cases. Disclosure requirements apply

Question 16

Explain 608

Answer 16

Can always attack/support W’s C4T with reputation/opinion testimony, but can’t support until attacked

Can’t use extrinsic evidence to prove C4T unless on cross

Question 17

What are the key don’t forgets of 608?

Answer 17

The rep/opinion testimony actually has to be probative of C4T.

Extrensic specific acts on cross actually have to be probative of C4T

C4T is pure C4P reasoning

Question 18

What statute does 608 often interact with?

Answer 18

A party attempting to admit evidence under 404(b) (for substantive purposes) might also try to admit under 608 (to impeach credibility)

Question 19

Explain 609

Answer 19

Governs Rules for Admission of past crimes to impeach C4T
IF crimen falsi->must admit (no exclusions)
IF crime punishable by >1 year admitted subject to some kind of modified 403 analysis
PLUS exclusions apply for
>10 years ago, pardoned/anulled, juvenile

Question 20

What are key don’t forgets about 609?

Answer 20

A conviction may be admissible even if pending on appeal

If admitted, must allow parties to present the essential facts about a prior conviction (crime, date, sentence)

Question 21

Explain 607?

Answer 21

Anyone may impeach a witness

Question 22

Explain 806

Answer 22

When hearsay is admitted, the declarant’s credibility may be attacked & then supported as if the declarant had been a witness

May admit inconsistent statement/conduct regardless if declarant had a chance to explain or deny

Question 23

Explain 613

Answer 23

Governs prior inconsistent statements
Extrinsic evidence of W’s prior inconsistent statement only admissible if W has a chance to explain/deny AND adverse party has opportunities to examine W about it

No need to show/disclose prior inconsistent statement to W but must to adverse atty

Question 24

What are key don’t forgets about 613

Answer 24

prior inconsistent statements are not offered to prove character, so no 608 restrictions

613 does not address the hearsay issue

801(d)(A)(1) allows admission of prior inconsistent statements as substantive evidence if sworn

Question 25

What are the key limitations on ability to impeach by bias?

Answer 25

401 and 403 are key limitations, but Confrontation clause helps

Question 26

What is the key limitation on ability to impeach by incapacity?

Answer 26

Impeachment by incapacity is allowed but defense should be ready to object under 608(b) if there are extrinsic specific instances offered to prove character for (un)truthfulness

Question 27

When does the collateral evidence rule apply?

Answer 27

Impeachment by specific contradiction

Question 28

What is the collateral evidence rule?

Answer 28

Cannot use EXTRINSIC evidence for impeachment on a COLLATERAL MATTER

(to determine if a matter is collateral, ask “would this evidence be admissible for any purpose other than impeachment by specific contradiction?”)