Character Evidence (404)

Rule 404. Character Evidence; Crimes or Other Acts (i.e. the “Propensity Rule”)

If something seems like character evidence, think of other ways you can get it in – for example, evidence that someone shot someone several times before may not be admissible to prove he shot someone this time, but it could be admissible to show that he knows how to shoot a gun, if shooting a gun is not something that is common knowledge

1. 413, 414, 415 are EXCEPTIONS to this rule

2. Character Evidence.

   1. Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait (but admissible for ANYTHING ELSE)

   2. Exceptions for a D or Victim in a Criminal Case. The following exceptions apply in a criminal case

      1. A defendant may offer evidence of the D’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

      2. Subject to the limitations in Rule 412, a D may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

         1. Offer evidence to rebut it; and

         2. Offer evidence of the defendant’s same trail; and

      3. In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor

   3. Exceptions for a Witness. Evidence of a witness’ character may be admitted under 607, 608, and 609.

3. Crimes, Wrongs, or Other Acts [Judge must make preliminary finding that there is adequate evidence to support a conclusion that the D really did commit the past acts sought to be described]

   1. Prohibited Uses. Evidence of a crime, wrong, or other act (literally any act) is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character (but is admissible for ANY OTHER PURPOSE).

   2. Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowlesge, identity, absence of mistake, or lack of accident (OR ANY OTHER PURPOSE NOT PROHIBITED). On request by a D in a criminal case, the prosecutor must:

      1. Provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

      2. Do so before trial-or during trial if the court, for god cause, excuses lack of pretrial notice

Also potentially submit character evidence for “negligent entrustment”

M.O. Evidence IS Admissible under this Rule: the inference in this case is NOT that “this is defendant’s kind of crime”, but that “this could NOT be anyone else’s crime”

Mendez Objection to Character Evidence:

• Character is situation-specific, i.e. someone may cheat on their wife but not on their taxes, etc.

  • So 404 is assumed on that people mistakenly buy into the trait theory

People v. Zackowitz: Zackowitz claims his wife was yelled at/insulted, he went over to the guy and eventually shot him. He concedes to the murder, but argues the degree and his state of mind.

• Prosecution tried to submit evidence of several guns in his house, even though they were not used in the murder, to establish he was a man of “dangerous propensity”, more likely to engage in a premeditated murder.

  • If Zackowitz was disputing he didn’t have any guns, etc. the evidence would be admissible

    • However, hot it is used here is a “propensity” argument (i.e. a propensity to engage in a premeditated murder” and PROPENSITY ARGUMENTS ARE NOT ADMISSIBLE.

• Prosecution is trying to do:

  • Guns in apt D’s Violent CharacterAction Conforms w/ D’s Violent Character D shot V

  • Highlighted Jump is NOT ALLOWED

• If guns were brought to the scene, then that would be admissible because it would show preparation and design.

Modus Operandi (M.O.) Evidence

US v. Trenkler: Trenkler allegedly built a bomb for his friend to kill his dad. Government’s case was relatively weak focused mainly on circumstantial, but what they deemed to be “MO” evidence. There were a lot of similarities between the two bombs, but also a lot of differences.

• The idea of M.O. evidence is “this could be nobody else’s bomb”

  • D is arguing that the government is just using propensity reasoning: since he built a fake bomb in the past, he is likely to have built a real one now.

• Gov contends that the features of the two bombs are way too similar for them to have come from different makers.

• Always consider the line at which propensity evidence becomes “M.O.” evidence

• Court held that the evidence was admissible as M.O. evidence

  • Trenkler is an example of what most courts consider sufficient M.O. evidence

Database Evidence Problems in Trenkler: What you don’t want to do in a comparison database is plug in two bombs and then find the similarities between the two. You should plug in all the characteristics of one bomb, and see if the other shows up as a match.

• Problem in Trenkler was the expert knew what he was looking for in the two bombs, and he excluded a lot of characteristics that were difference

• Seems like this should fail the 403 test: Very little probative value (you can easily find similarities between things that are otherwise not similar) and highly prejudicial.

Reverse 404B Evidence...

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