Evidence-Character

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brozovic
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89699
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Evidence-Character
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2011-06-07 19:06:36
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Evidence-Character
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  1. Definition
    • =a person’s general disposition or propensity.
    • (honest/dishonest; peaceful/violent; careful/careless)

    • Four broad questions:
    • --Purpose (propensity?)
    • --Criminal or civil?
    • --Door been opened?
    • --Correct form of evidence?
  2. Propensity Purpose
    General Rule (FRE 404)

    Evidence of a person’s character or past acts is inadmissible if offered for the purpose of showing action in conformity therewith.
  3. Permissible (Non-Propensity) Purposes
    MIMIC
    • MIMIC
    • -Motive
    • -Intent
    • -Mistake or accident (or the absence thereof)
    • -Identity (including modus operandi)
    • -Common Scheme or Plan

    Do not use these as mere labels. To avoid propensity rule, evidence must still not engage in propensity reasoning.

    (Daughter accused of killing mother with axe; defense=accident. Prosecution seeks to show that D threw a knife at her mother a week earlier. Not admissible for propensity of throwing weapons at mother; but could be admissible to show absence of mistake/accident and intent).

    (D accused of robbery; alibi=out of town. P seeks to use evidence that D robbed other stores in the vicinity on the same day. Admissible for non-propensity purposes: Identity of perpetrator; and contradicting alibi.)

    (Zucchini bank robber. Non-propensity purpose of identity (modus operandi)).
  4. Permissible (Non-Propensity) Purposes
    Procedural Considerations
    Point these out on NY essays.

    • FRE 403
    • MIMIC evidence may still be more prejudicial than probative.

    • Limiting Instructions
    • Court must instruct the jury about the limited purpose of evidence.

    • Pretrial Notice
    • Upon D’s request, prosecution must give pretrial notice of intent to introduce MIMIC evidence.
  5. Permissible (Non-Propensity) Purposes
    Essential Element
    Evidence of a person’s character is admissible in a civil action where such character is an essential element of a claim or defense.

    For bar, only two:

    --Negligent hiring or negligent entrustment

    --Defamation

    (Neg hiring/entrustment. Company hires driver who gets into accident. Need to show driver’s propensity for bad driving to make the hiring/entrustment negligent).

    (Defamation. P sues D for calling P dishonest. D must show propensity for untruthfulness to establish defense of truth).
  6. The Habit Exception (FRE 406)
    Habit of a person (or routine of a business organization) is admissible to infer how the person (or business) acted on the occasion at issue in the litigation.

    Habit vs. Propensity

    --Habit is a repetitive response to a particular set of circumstances.

    • --Two hallmarks:
    • (a) frequency;
    • (b) particularity (specificity).

    (P is safe vs. P always buckles belt as soon as gets into car)

    On MC, “always, invariably, automatically, instinctively, etc.” indicate habit. On essays, just have to reason it out.

    • Business Routine
    • The regular practice of an organization is admissible to prove conduct on a particular occasion.

    NY Rule

    (a) Habit evidence relating to a business, trade, or profession is admissible.

    (b) Evidence relating to a personal habit on the issue of due care in negligence is not admissible.

    (c) [Exception to (b)]: Evidence relating to a personal habit in the use of a product is admissible.

    NY is skeptical of habit in a non-business context. People are unreliable.
  7. True Character Exceptions
    Evidence is admissible for true propensity purposes.

    • Character in Criminal Cases (FRE 404(a))
    • --D’s Character Offered by D (and Rebuttal by P)
    • --V’s Character in a Self-Defense Case
    • --V’s Character in a Sexual Misconduct Case (FRE 412)

    Character Evidence in Civil Cases

    Evidence of Other Sexual Misconduct in Sexual Assault Cases (FRE 413)
  8. True Character Exceptions
    Character in Criminal Cases
    D's Character Offered by D (and Rebuttal by P)
    Rule

    A criminal D may introduce evidence of his own good character for a relevant trait.

    If D does, P may rebut with evidence of D’s bad character for the same trait.

    Form of Evidence

    • When offered by D on direct:
    • --Reputation or opinion
    • --Reputation only
    • --No specific acts.

    When offered by P to rebut:

    • --Rebuttal with Own Character Witnesses
    • ---Reputation of opinion
    • ---Reputation only
    • ---No specific acts.

    • --Rebuttal by Cross-Examining D’s Character Witnesses
    • ---Specific [bad] acts
    • ---Form: “Did you know” / “Have you heard” (purpose to test knw; not to prove act)
    • ---Good faith requirement (no character assassination by innuendo)

    • --Rebuttal With Evidence of Crime
    • ---May rebut D’s good character evidence by proving that D has been convicted of a crime that reflects adversely on the trait in issue.
  9. True Character Exceptions
    Character in Criminal Cases
    Victim’s Character in a Self-Defense Case
    • Federal Rule
    • A criminal D may offer evidence of the V’s violent character to prove that the V was the first aggressor.

    • Prosecution Rebuttal
    • If D opens the door, P may rebut with evidence of
    • --V’s good character for that trait, or
    • --D’s bad character for that trait.

    Form

    • Same rules as D’s Character Offered by D.
    • Direct: reputation or opinion (rep only)
    • Cross: specific acts to test knowledge

    • NY Rule
    • Evidence of V’s character is inadmissible to prove that V was the first aggressor.

    • Special Rule for D’s Knowledge of V’s Character for Violence
    • --D may offer evidence of his own knowledge of V’s bad character for violence for purpose of showing that he reasonably believed in the need to use self-defense.

    --Because not propensity, any form.

    --NY follows.
  10. True Character Exceptions
    Character in Criminal Cases
    Victim’s Character in a Sexual Misconduct Case (FRE 412)
    The Rape Shield Rule

    In a case involving alleged sexual misconduct, the D ordinarily may not introduce evidence of:

    • --V’s reputation for promiscuity; or
    • --V’s prior sexual conduct.

    Exceptions

    • A D may introduce
    • (a) Evidence of V’s sexual activity with D only if defense is consent.
    • (b) Evidence of V’s sexual activity with others only to prove that a non-D was source of physical evidence.
    • (c) Evidence required to be admitted by D’s DP rights (vague; not likely to see).
    • (d) Evidence of V’s conviction for prostitution within the past three years.
  11. True Character Exceptions
    Character Evidence in Civil Cases
    Character evidence is generally inadmissible to prove propensity in civil cases.
  12. True Character Exceptions
    Evidence of Other Sexual Misconduct in Sexual Assault Cases (FRE 413)
    • Federal Rule
    • In any criminal or civil case alleging sexual assault or child molestation, the P may offer evidence of the D’s prior sexual misconduct for the purpose of proving the D’s propensity.

    Once a rapist, always a rapist. Departure from the normal propensity rules.

    --No restrictions on form.

    --Past misconduct need not be convictions.


    NY Rule

    No exception. D treated same as all other Ds.
  13. Character Evidence Review
    Propensity. Evidence of a character or past acts is inadmissible when offered to prove action in conformity therewith.

    • Non-Propensity
    • -MIMIC
    • -Habit (frequency and particularity)
    • -Trait as element (criminal): Never
    • -Trait as element (civil): Negligent hiring/entrustment; defamation.

    • Criminal vs. Civil
    • -Civil: Character evidence generally inadmissible.
    • -Criminal: D may always offer character evidence about himself of V.
    • -D Knw: Allowed to introduce evidence of knw of Vs character for aggression in self-defense case.

    • Form
    • -Direct: reputation or opinion
    • -Cross: specific acts to test knowledge

    • Special Rules for Sexual Assault Cases
    • --V’s character for promiscuity inadmissible (subject to narrow exceptions)
    • --D’s past conduct admissible in federal court.

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