CHARACTER EVIDENCE Flashcards
TYPES OF CHARACTER EVIDENCE
High
- Character evidence: Person’s general propensity/disposition (for honesty, fairness, peacefulness, violence).
- Character evidence might be offered:
(1) To prove a person’s character where their character is directly in issue in the case (an essential element of a claim/ defense); or
(2) To serve as circumstantial evidence of how a person
probably acted during events of the case (“conduct in conformity w/ character”/“propensity” evidence). - Permitted only in a few situations.
- Evidence of witness’s bad character for truthfulness
might be offered for impeachment purposes (to attack witness’s credibility rather than to prove some fact in the case).
Methods of Proving Character
High
(1) Evidence of person’s specific acts;
(2) Opinion testimony of witness who knows person;
and
(3) Testimony as to person’s general reputation in the community
DEFENDANT’S CHARACTER IN CRIMINAL CASE
High
- Prosecution cannot initiate evidence of D’s bad character to show conduct in conformity (but can for non propensity purposes).
- In other words, they can’t introduce such evidence during their case-in-chief to show that it is w/in D’s character to commit charged crime.
- D is permitted to introduce evidence of their own good character to show their innocence.
-If D introduces evidence of their good character, prosecution can rebut w/ evidence of D’s bad character.
How Defendant Proves Character
High
- Character witness for D may testify as to D’s good reputation for a pertinent trait & may give their personal opinion concerning that trait of D
Tip
- D does not put their character in issue merely by testifying. Taking the stand places D’s credibility (not character) in issue; meaning, prosecution is limited to offering impeachment evidence rather than substantive CE.
Prosecution’s Options—Cross-Examination of
Defendant’s Character Witness and Rebuttal
High
- Once D opens the door by introducing CE, prosecution can take either/both of the following actions:
(1) Prosecution can cross-examine D’s character witness regarding basis for their testimony by asking “Have you heard?”/“Did you know?” questions about specific acts of D that show D’s bad character for trait in question. - The permitted purpose of the cross-examination is to show the character witness’s lack of knowledge, not to prove D’s bad character.
(2) Prosecution can call its own character witnesses to provide reputation/opinion testimony about D’s bad character for the trait in question.
Tip
Any misconduct, including prior arrests, may be
inquired about while cross-examining D’s character witness. Remember, however, that prosecutor is limited to inquiry of the witness; they may not introduce any extrinsic evidence of the misconduct. Be careful to distinguish asking a character witness whether they are aware of D’s prior arrests, which is
proper, & impeaching a witness w/ witness’s own
arrests, which is improper
VICTIM’S CHARACTER IN CRIMINAL CASE: When Defendant Can Initiate
- Except in sexual assault cases, D may introduce reputation/ opinion evidence of a bad character trait of the alleged crime vic when it is relevant to show D’s innocence.
- Although vic’s character usually has no bearing on D’s innocence, it becomes relevant when D claims self-defense & argues that vic was first aggressor.
Prosecution Rebuttal
- Once D has introduced evidence of a vic’s bad
character for a pertinent trait (usually violence), prosecution may rebut w/ reputation/opinion evidence of:
(1) Vic’s good character for the same trait, or
(2) D’s bad character for the same trait
TIp
- The rules above apply where evidence of vic’s character is being offered for propensity purposes (to prove how the vic likely acted during altercation at issue).
- But evidence of a vic’s character might also be offered for a non-propensity purpose— to prove D’s SOM at time of altercation. If D knew at time of altercation that vic had a violent reputation/had committed violent acts in the past, evidence of vic’s reputation/acts may be admitted to prove D acted reasonably in responding to vic’s aggression.
- The above prohibition on specific acts does not apply when the evidence is offered for a non-propensity purpose.
When Prosecution Can Initiate—Rebutting Self-Defense Claim in Homicide Case
- Special rule: allows prosecution to offer evidence of a vic’s good character for peacefulness.
- In a homicide case where D pleads self-defense, evidence of any kind (not just CE) that vic was first aggressor (ex. eyewitness testimony that vic struck first) opens door to evidence that vic had a good character for peacefulness.
- Prosecution can introduce this evidence regardless of
whether D has introduced CE of vic’s generally violent propensity
Rape Victim’s Past Behavior Generally Inadmissible
- In any civil/criminal proceeding involving alleged sexual
misconduct, evidence offered to prove sexual behavior/ sexual disposition of vic is generally inadmissible.
Exceptions in Criminal Cases
- In a criminal case, specific instances of a vic’s sexual behavior are admissible to prove that someone other
than D is source of semen, injury, or other physical evidence. - Specific instances of sexual behavior between vic & D are admissible by prosecution for any reason & by defense
to prove consent.
Exceptions in Civil Cases
- In a civil case, evidence of alleged vic’s sexual behavior is admissible if it is not excluded by any other rule & its probative value substantially outweighs danger of harm to vic & of unfair prejudice to any party (notice this is a special balancing test that is reverse of Rule 403 & favors excluding evidence).
- Evidence of alleged vic’s reputation is admissible only if it has been placed in controversy by the vic.
CIVIL CASES—GENERALLY NOT ADMISSIBLE
- In civil cases, CE is generally inadmissible to prove conduct in conformity (cannot be offered to prove how a person probably acted during events of current case).
- True regardless of which party seeks to offer evidence.
Admissible When Character Directly in Issue
- When proof of person’s character is an essential element of claim/defense, character is “directly in issue.”
(1) Defamation cases where truth is a defense (P’s character is at issue);
(2) Negligent hiring/entrustment cases (hired/entrusted
person’s character is at issue); and
(3) Child custody cases (parents’ character is at issue) - When character is directly in issue, all forms of CE (reputation, opinion, & specific acts) are admissible.
OTHER MISCONDUCT FOR NON-CHARACTER PURPOSE: General Rule—Other Misconduct Inadmissible
- Evidence of a person’s other crimes, wrongs, or acts is generally inadmissible if offered solely to prove conduct in conformity/propensity.
Admissible If Independently Relevant (MIMIC
Evidence)
- Evidence of person’s other crimes, wrongs, or acts is admissible if relevant to some issue other than their
character/propensity to commit the crime charged (or the alleged act in civil cases). - Such evidence is usually offered in criminal cases,
but it can also be used in civil cases (such as in tort actions for fraud & assault). - Non-character purposes for offering the evidence may include:
(1) Motive (ex. burning a building to hide embezzlement),
(2) Intent (to show guilty knowledge/lack of good faith),
(3) Absence of mistake/accident,
(4) Identity (ex. signature” crimes/modus operandi), or
(5) common plan/scheme (usually, committing one crime to prepare for another).
