Character Evidence

1
Character Evidence

• Rules 404, 405, 406

2
Where we are to date

• Rule 402 Relevant evidence is presumptively
  admissible.
• Rule 403 Relevant evidence may nonetheless be
  excluded if it is subject to misuse or likely to
  waste time.
• Today Can we identify any types of evidence
  where the risk of misuse is so high that it is
  reasonable to exclude categorically all
  evidence of that type?

3
Why exclude a category of evidence?

• Truth-seeking values
• Low probative value
• Other, stronger evidence will generally be
  available
• Prejudice (misuse) estimation problems
• Prejudice (misuse) regret matrix problems
• Efficiency values
• Low probative value
• Avoid extended litigation on collateral issues
• Values that dont have anything to do with
  truth-seeking
• Notion that one should be tried for present
  crimes, not past actions
• Protect openness of settlement negotiations
• Encourage post-accident repairs

4
Purposes for Offering Character Evidence

• Circumstantial evidence of how a person probably
  acted
• Civil cases
• Criminal cases
• Character directly in issue in the case
• Impeach witness credibility
• We will cover this when we get to Chapter 6.

5
Inferential Chain
6
Questions to Address

• Purpose for which the character evidence is
  offered
• Method by which character is proven
• Kind of case, civil or criminal

7
When is Character Evidence Admissible?

• Circumstantial evidence of how a person probably
  acted
• Civil cases not admissible
• Criminal cases
• ? can present evidence of good character.
• Prosecution can rebut by presenting evidence of
  bad character.
• ? can present evidence of Victims bad character.
• Prosecution can rebut by presenting evidence of
  good character.
• Prosecution can rebut by presenting evidence of
  ?s bad character.
• If homicide ? claims self-defense, Prosecution
  can rebut by presenting evidence that Victim was
  peaceful.
• Character directly in issue in the case
• Impeach witness credibility save for chapter 6.

8
Exclusive Rule

• Character evidence is not admissible to prove
  action in conformity therewith.
• Exceptions
• Accused can present evidence of a pertinent trait
  of character Prosecution can rebut.
• Accused can present evidence of victims
  pertinent trait of character Prosecution can
  rebut.
• Witness can be impeached.

9
Inclusive Rule

• Character and bad acts are admissible to prove
  things other than forbidden propensity
  inferences.
• If its not forbidden by 404(a), its
  presumptively admissible per 402.
• 404(b) contains a non-exhaustive list of
  permitted non-propensity uses.
• 405 permits proof of character in issue.
• 406 permits proof of habit.

10
Methods of Proving Character

• Character directly in issue in the case FRE
  405(b).
• Reputation or Opinion
• Specific instances of conduct may be proven
• Circumstantial evidence of how a person probably
  acted (Criminal cases) FRE 405(a).
• Reputation or Opinion
• Specific instances of conduct may be inquired
  into on cross examination
• Exception Rape Shield Law FRE 412.

11
Criminal ?s Good Character

• Reputation
• Do you know ?s general reputation for being a
  quiet, peaceable, law-abiding citizen in and
  around the community of X prior to and on January
  14, 2004?
• Impeachment Have you heard that ? has been
  arrested five times in the past year for drunk
  and disorderly conduct?
• Opinion
• Do you have an opinion as to whether ? is a
  quiet, peaceable, law-abiding citizen?
• Impeachment Did you know that ? has been
  arrested five times in the past year for drunk
  and disorderly conduct?

12
Sexual Misconduct

• Evidence that the ? has committed a prior sexual
  assault is admissible in a case where sexual
  assault is alleged.
• FRE 413 415.
• Evidence that the ? has committed prior child
  molestation is admissible in a case where child
  molestation is alleged.
• FRE 414 415.

13
Victims Bad Character

• It was self-defense. Victim was the first
  aggressor.
• Victim has a reputation for being violent.
• My opinion of Victim is that Victim is violent.
• Victim has started five bar fights in the past.
• It was self-defense. My use of force was
  reasonable because I believed that Victim was
  going to hurt me.
• Victim has a reputation for being violent.
• My opinion of Victim is that Victim is violent.
• Victim has started five bar fights in the past.

14
Misconduct Admissible if Independently Relevant

• Motive
• Opportunity
• Intent
• Preparation
• Plan
• Knowledge
• Identity
• Absence of mistake or accident