Evidence-Character

• =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?

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.

• 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)).

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.

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).

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.

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)

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.

• 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.

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.

Character evidence is generally inadmissible to prove propensity in civil cases.

• 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.

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.