#11408 - Character - Evidence

Character: 404-406, 413-415

1. Permissible reasons

   1. character itself is ultimate issue in case

      1. Must be admitted, even specific acts

      2. Used in entrapment defense: b/c you have to show you’re not predisposed to commit crime

   2. D’s good, pertinent character (just reputation and opinion)

   3. To show V’s bad character (or good, if door opened)

   4. Door has been opened by D

   5. To impeach/rehabilitate credibility of witness

   6. Habit/routine

   7. Theory of Relevance not relying on character inference

      1. Knowledge

      2. Intent

      3. Plan

      4. Preparation

      5. Opportunity

      6. Motive

      7. Identity (modus operandi)

      8. Absence of mistake

      9. accident

2. FRE 404

   1. 404(a) = permissible use of character evidence

      1. D may offer evidence of D’s pertinent character trait (opens the door for P)

         1. Policy: so D has every means available to invite jury to find reasonable doubt, including D’s own character.

         2. How? See 405

      2. D may offer evidence of alleged V’s trait (opens the door for character evidence of V and D)

         1. Policy: 6th amendment right to put on your defense.

         2. Subject to limitations of FRE 412 (rape shield)

            1. Criminal: may use evidence only to show…

               1. that someone other than D was source of semen/injury

               2. specific instances of V’s sexual behavior with D (to show consent)

            2. Civil: probative value must substantially outweigh danger of harm to victim and unfair prejudice to any prejudice. Court may admit evidence of V’s reputation only if V has placed it in controversy.

      3. In homicide case, P may offer evidence of V’s trait of peacefulness to rebut evidence that V was first aggressor

         1. Policy: V can’t be present to defend herself and there is usually not other witnesses during a murder

   2. FRE 404(b) = specific acts relevant without character inference

      1. Must show that specific act happened

         1. Huddleston : Standard to get past crimes in: 104(b) ESSF that the party committed the bad act

      2. 403 Objection

         1. 2 factors to determine the probative value of prior bad act evidence:

            1. The remoteness in time of the other act and

            2. The degree of resemblance to the crime charged

         2. Varoudakis –P’s theory of relevance: previous car fire shows the developed trust relationship with wife and D, such that he is willing and able to commit crimes in front of her. But the court finds that there is too much prejudice to this past act, especially since P is putting on a lot of evidence about how wife helped with the specific crimes (stopped paying insurance bill, moved all furniture)

            1. The government enhanced the prejudice by putting it in their opening statement…invited the jury to use the evidence the wrong way, thus undermining the admissibility of P’s evidence

            2. Criticism of P

               1. Prosecution has advantage of context and time. Ps know the totality of their case before trial, and how the prior bad act fits into it. P knew they didn’t need car-fire evidence in order to determine relationship between D and girlfriend

         3. Montelongo – Past bad act need not be convicted, 403 dangers against W

            1. Truck’s owner had been charged with hiding drugs in the truck in the past. Evidence cut against knowledge element for Ds. Although owner was not charged last time, there is still ESSF that act occurred and owner was involved

            2. 403 dangers don’t substantially outweigh probative value – only prejudiced against witness, not the person on trial

   3. Irregular rules

      1. Domestic Violence

         1. CEC 1109: allows in past incidents of DV to show D’s character as a batterer, from which the jury is asked to infer that D battered on this occasion

      2. Specific intent to sell drugs

         1. P allowed to introduce evidence of past charges for selling drugs (no matter what the defense theory is)

   4. Policies

      1. Character evidence tends to be overpersuasive

      2. Tempts juries to punish people for bad character, regardless of how they acted on a specific occasion

      3. Not as probative as many people think

3. FRE 406 – Habit/Routine practice (IS NOT CHARACTER EVIDENCE)

   1. Of a person or organization

   2. Must be habit

      1. Particular

      2. And morally neutral

      3. And routine

   3. Must establish that habit/routine practice existed in this case

      1. Qualified witness that testifies to sufficiently regular and routine conduct

   4. Forms of evidence admissible

      1. FRE intentionally vague. Congress indicated that the method of proof should be left to courts to deal with on a case-by-case basis

         1. Most common:

            1. Opinion (of party himself, or another person that knows party)

            2. Specific instances

4. FRE 405

   1. Methods of proving character (when it’s admissible)

      1. By reputation or opinion

         1. FRE 803(21) = hearsay exception for reputation evidence

         2. Impermissible on direct examination to explore basis for opinion by asking about specific acts

      2. By specific instances of conduct

         1. Only when…

            1. a person’s character is an essential element of a charge/defense

            2. Or when offered to prove a non-character theory

            3. When a W testifies to character, the court may allow an inquiry (cross-exam) into relevant specific instances of the person’s conduct (basis of W’s reputation/opinion evidence)

               1. Including questions about past arrests convictions

               2. Lawyer must have good faith basis for asking each question

               3. Specific act must relate to character trait about which W has testified

               4. May ask “have you heard” or “do you know” because of 405(a)

               5. No extrinsic evidence

               6. Purpose: to impeach W, not to prove character of the party that W testified about

         2. Why so...