Character Evidence

Question 1

Character Evidence in Civil Cases

Answer 1

Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion

Exceptions - character evidence is addmisslbe where:
* Character at issue - character is an essential element of a claim or defense (e.g., defamation)
* Character can be proved through opinion, reputation, or specific instances of conduct
* Prior acts of sexual assault or child molestation in cases for similar claims - in cases arising from sexual assault or child molestation, D’s prior acts of sexual assault or molestation are admissible to prove D’s conduct in the present case

Impeachment vs. character - be sure to understand whether evidence of a person’s character is being used as substantive character evidence or impeachment evidence
* Substantive character evidence is subject to greater admissibility restrictions than impeachment

Question 2

Evidence of Defendant’s Character in Criminal Cases

Answer 2

In criminal cases, D may introduce evidence of her good character, which the prosecution may rebut; with limited exceptions, P may not first introduce evidence of D’s character

Defense - may introduce evidence of pertinent good character
* Must be pertinent to the charged crime (e.g., D’s reputation for peacefulnes is irrelevant to a forgery charge)
* Method - D may call W to testify to D’s good character based on reputation or opinion (not specific instances)
* P’s rebuttal - once D “opens the door,” P may rebut by:
* Cross-ex of D’s character W - including knowledge of specific instances of D’s misconduct or prior arrests

  * Calling W to testify to D's bad character - limited to                D's character for the trait in question 

Prosecution - may not initiate introduction of character evidence about D (i.e., can’t “open the door”), except:
1. Sexual assault/child molestation cases - P can offer evidence of D’s other acts of sexual assault or child molestation
2. If D first offers evidence of victim’s character - P can offer evidence that D has the same character trait
* Direct - reputation and opinion evidence is admissible; specific instances is inadmissible
* Cross - reputation, opinion, and specific instances are admissible

Question 3

Evidence of Victim’s Character in Criminal Cases

Answer 3

Only D can “open the door” by introducing evidence of victim’s character to prove conduct
* Once D offers evidence of victim’s character, P may rebut
* Homicide cases - if D raises self-defense, D can offer evidence of victim’s character for violence to show that the victim attacked first
* P may then rebut by offering evidence of victim’s characer for peacefulness to rebut D’s claim of self-defense

Methods:
* Direct - reputation and opinion admissible; specific instances inadmissible
* Cross - reputation, opinion, specific instances admissible

Question 4

Rape Shield: Limitation on Evidence of Victim’s Character in Sexual Assault Cases

Answer 4

In sexual assault cases - both criminal and civil - special rules limit D’s ability to present evidence of victim’s character

Civil cases - reputation, opinion, and specific instances of victim’s character are admissible if:
1. Probative value substantially outweighs unfair prejudice; and
2. In the case of reputation evidence, P puts her reputation at issue in some way
* Note - this standard is two-pronged, do not confuse with FRE 403 discretionary exclusion standard

Criminal cases
* Reputation and opinion evidence of victim is inadmissible
* Evidence offered to prove victim’s sexual behavior or disposition is inadmissible
* Exceptions - specific instances of victim’s sexual behavior is admissible to show:
1. a third party is the source of injury or DNA evidence, or
2. prior acts of consensual intercourse between victim and D

Procedure - parties must disclose intent to offer evidence, describe its purpose, and notify the victim 14 days before trial

Question 5

Specific Instances of Defendant’s Bad Conduct
(Prior Bad Acts)

Answer 5

In civil and criminal cases, specific instances of D’s bad conduct are generally inadmissible to prove character (i.e., action in conformity therewith), but admissible if independently relevant
* I.e., prior bad acts are inadmissible unless the acts are relevant to an issue other than D’s character or criminal disposition
* Exception - in sexual assault or molestation cases, evidence of D’s prior acts of sexual assault or molestation is admissible

MIMIC - common non-character uses of prior acts evidence:
* Prior acts evidence is admissible to prove:
1. Motive
2. Intent
3. Mistake (i.e., absence of mistake, knowledge)
4. Identity (extremely similar or unique prior act)
5. Common plan or scheme
* Usually arises in criminal cases, but may arise in civil cases

Note - prior acts evidence is always subject to 403