Character Evidence

OPINION, REPUTATION & SPECIFIC INSTANCES

Character Evidence: predictive, suggesting
probable patterns of behavior and thus telling us
something about the likelihood that a person
would or would not do certain acts

FRE 404(a)(1): Character evidence generally is not admissible for the

purpose of proving action in conformity therewith on a particular occasion
EXCEPT:
1. In a criminal case, evidence of a pertinent trait of character
offered by an accused, or by the prosecution to rebut the same.
2. In a criminal case if evidence of a trait of character of the alleged
Reputation v. Opinion Testimony:
victim of the crime is offered by an accused (admitted under 404(a)
To give reputation testimony, you don't
(2)).
need to have
about
3. an
In opinion
a criminal
casethe
evidence of the same trait (offered by accused
character oftothe
individual
describe victim) in accused offered by prosecution.
testimony Character
involves what
the victim is admissible if offered by the
Opinion
FRE 404(a)(2):
of alleged
witness
thinks
accused or by the prosecution to rebut the same OR evidence of a character
Oftrait
course,
there is overlap
of peacefulness
of the alleged victim offered in a homicide trial only to
rebut a claim of self-defense (etc.).
FRE
405(a):character
methodsevidence
of proving
character include opinion or reputation
Civil Cases:
generally
is not
specific instances may only be offered on cross-examination
admissible;testimony;
Exceptions:
to whether
individual
is peaceable, or when character is an essential
1. Perrin v.related
Anderson,
sometimes
character
of the
crimewhere underlying
evidence iselement
admissible
in cases
FRE 405(b):
specific instances
conduct: in cases in which character or a
conduct is criminal;
Ex: damages
for sexualofassault
trait of character
of a person
is an essential element of a charge, claim or
2. When character
is the ultimate
issue; defamation,
defense, proof
may
also bewrongful
made of specific instances of that person's
negligent entrustment,
child
custody,
conduct (very rare!)
death
*Ex: libel or defamation suit, entrapment

SEX OFFENSE CASES

Rape Shield Statutes: restrict the use of evidence relating
to sexual history of a sex crime victim, FRE 412 serves as
a model for the state rape shield statutes
Defendant's Character:
FRE 413 - 415: enacted by Congress to allow prosecutors
to prove sexual assault or child molestation by means of
evidence that defendant assaulted or molested others
FRE 413: where a D is accused of sexual assault,
evidence of other sexual assault offenses is
admissible and may be considered on any matter
to which it is relevant
*Propensity - turns FRE 404 on its head!
*Incorporates a lustful disposition doctrine.
FRE 414: in trials for child molestation, evidence
of other child molestation offenses is admissible
and may be considered for its bearing on any
matter to which it is relevant
FRE 415: extends 413 and 414 to civil cases
raising issues of sexual assault or child
molestation

Victim's Character:
FRE 412: the federal model for a rape shield statute; evidence is not
admissible if it is offered to prove that any alleged victim engaged in
other sexual behavior or it is offered to prove any alleged victim's
sexual predisposition. (both civil and criminal cases)
*Predisposition = sexual orientation
*This rule starts with a presumption of exclusion.
Criminal Exceptions:
1. Evidence of specific instances of sexual behavior by the
victim offered to prove that a person other than the accused
was the source of semen;
2. Evidence of specific instances of sexual behavior by victim
with respect to accused offered to prove consent;
Existing or ongoing relationship
3. Evidence that, if excluded, would violate the constitutional
rights of the defendant.
Odd provision - because the constitution
always controls
Civil Exceptions: evidence that is otherwise admissible under these
rules and its probative value substantially outweighs the danger or harm
to any victim and of unfair prejudice to any party; evidence of victim's
reputation is admissible only if placed in controversy by the victim.

PRIOR ACTS
Huddleston Prior Acts Test:
*Essentially balances FRE 404(b) and FRE 403.
1. Was the evidence offered for the proper purpose?
a. Can't be admitted to show propensity
b. Proper purposes: see FRE 404(b) exceptions
2. Was the evidence relevant for that purpose?
a. Relevant if the jury can reasonably conclude by
a preponderance that the act occurred and that
the defendant was the actor
i.
Other courts have rejected this in
favor of requiring the judge to
determine, by preponderance, rather
than the jury
3. Is the probative worth outweighed by the risk of unfair
prejudice?
4. Can a limiting instruction be given on request?

Judge's Role: decides whether to admit evidence, but very low

standard - just has to be probative; gives jury instruction on how
to treat evidence
Jury's Role: determines by a preponderance of the evidence
whether the act occurred and the defendant was the actor

FRE 404(b): Evidence of other crimes, wrongs or acts is not

admissible to prove character of a person in order to show
conformity therewith (propensity)
EXCEPTION: prior acts are admissible for proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident
*Provided thatupon request by accused, advanced
notice of character evidence must be given unless good
cause can be shown

FRE 104: Preliminary questions of admissibility

(a) preliminary questions shall be determined by the court,
subject to provisions of the subdivision; court not bound by the
rules of evidence except with respect to privileges.
(b) relevancy conditioned on fact; when the relevancy of
evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of the
condition.