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Evidence Chapter 4 Character Evidence Outline

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This is an extract of our Evidence Chapter 4 Character Evidence document, which we sell as part of our Evidence Outlines collection written by the top tier of Harvard Law School students.

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Table of Contents
Chapter 4. Character Evidence.................................................................................................1
A. The Basic Rule and Its Exceptions...................................................................................................1
C. Other Uses of Specific Conduct.......................................................................................................9

1. Permissible Purposes......................................................................................................................9

2. Requisite Proof..............................................................................................................................15
D. Character and Habit.....................................................................................................................17
E. Sexual Assault and Child Molestation...........................................................................................20

1. Character of the Victim.................................................................................................................20

2. Character of the Defendant..........................................................................................................26

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 4. Character Evidence
A. The Basic Rule and Its Exceptions
Introduction
 Longstanding principle of Anglo-American evidence law prohibits proving a person's character to support an inference the person acted in conformity with his character on a particular occasion.
 Customarily justified on ground that evidence of this sort, while probative, is likely to be unduly prejudicial.
 Like hearsay rule, character evidence rule depends in its application on the purpose for which the challenged evidence is offered. Character trait is barred only if offered to prove conduct in conformity with the trait.
 Three exceptions:
o Character of criminal defendant

Character of victim or alleged victim of criminal offense

Character of witness.
 First two exceptions generally must be first invoked by criminal defendant. Once D chooses to open question of his/her character, or character of alleged victim, prosecution can follow suit.
FRE 404. Character Evidence; Crimes or Other Acts
 (a) 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.
o (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
 (A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
 (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:
 (i) offer evidence to rebut it; and
 (ii) offer evidence of the defendant's same trait; and
 (C) 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.
o (3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.
People v. Zackowitz, 172. N.E. 466 (N.Y. 1930)
Facts:
 V said insult to D's wife, and D told him to go away; D and wife went into home, and wife told D content of insult. D went back outside with a gun and shot V.
o D told police he armed self with pistol in home; in testimony D said he had already been carrying pistol. Evidence suggests V attacked
D.
 Challenged admission of evidence that, at the time of arrest, D had three other pistols and a tear-gas gun in his apartment.
Opinion (Cardozo):
 Question is whether killing was premeditated.
o Must avoid blurring issues by evidence illegally admitted and carrying appeal to prejudice and passion.
 Evidence here was inadmissible.
o Prosecutor and judge harped on the inadmissible evidence.
o Evidence introduced for illegitimate purpose.
 evidence was introduced to persuade jury that D was man of vicious and dangerous character who, because of that character, was more likely to kill with deliberate and premeditated design than a man without that character,
o Evidence was only relevant for illegitimate purpose.
 Ownership of other weapons was relevant only for indicating general disposition to make use of them thereafter, and general disposition to make use of them thereafter is only relevant to prove bad character. 

Character is never an issue in a criminal prosecution unless the defendant chooses to make it one.
o When the issue is self-defense, testimony has been admitted as to the murderous propensity of the victim, but never to such propensity in the defendant.
Would be different issue if:
o Pistols had been bought in expectation of a particular encounter.
 Admissible as evidence of preparation and design.
o Pistols were so connected with crime as to identify perpetrator, for example if perpetrator dropped them at scene of crime.
 Admissible as tending to implicate possessor if identity was disputed, no matter the opprobrium attached to his possession.
o Defendant went from apartment carrying all the weapons.
 Admissible as preconceived design.
No such implication of preconceived design from ownership of guns left at home.
o Here, endeavor was instead to generate atmosphere of professional criminality. It was especially unfair here because the D was actually otherwise a pretty upstanding guy: he was a dentist, had no criminal friends, etc.
D was forced to defend his ownership of guns.
o D said he was a gun hobbyist. Whether true or not, he shouldn't have been in position where he had to defend himself against a general and sweeping theory; he was brought in for the purpose of answering a specific charge.
Conviction reversed and remanded for new trial.

Cleghorn v. New York Central & Hudson River R.R. Co., 56 N.Y. 44
(1874)
Facts:
 Accident caused by switchman who failed to close switch after train passed, giving false signal to approaching passenger train.
 D argues court erred in admitting evidence of employee's intemperate habits as a switchman.
 D argues Warner v. NYC R.R. Co. is direct authority against admission of evidence.
o In Warner, a case of injury at road crossing, it was proved that flagman who neglected to give customary signal was intoxicated at the time.
o Court held it error to show previous habits of intemperance known to officers of company, on ground that evidence had no bearing upon question of negligence at the time.
Opinion (Church):
 Warner decision is right, as far as it goes: 

o Previous intoxication should not tend to establish an omission to give the signal on the occasion of the accident.
In the present case, however, evidence is introduced for different purpose:
o It was sought to be proved not only was employee was intoxicated at the time of the accident, but that employee was a man of intemperate habits that were known by company agent with power to employ or discharge him, with a view of claiming exemplary damages.
For this purpose, the evidence was competent for the second purpose.

Berryhill v. Berryhill, 410 So. 2d 416 (Ala. 1982)
Facts:
 During course of custody proceeding, petitioner asked respondent if he ever killed anyone.
 Court of Appeals held relevancy of question was not shown.
Opinion (Beatty):
 The question may have been overbroad, but it was relevant.
o If character or reputation becomes a matter in issue in a civil suit,
evidence with reference to such a party's reputation or character is admissible.
o In a child custody proceeding, character is obviously an issue.
Evidence touching the character, conduct and reputation of the parties or any other evidence tending to throw light on their fitness to be custodian is admissible.
 Question of whether R every killed anyone would be relevant as attempt to show specific act of bad character bearing on fitness of respondent.
 CoA reversed.
 [Character in issue is tricky. It's not excepted when character is relevant.
Character must be an issue in the case.]
Larson v. Klapprodt, 231 N.W.2d 370 (S.D. 1975)
Facts:
 P alleged D [counterclaim, so really P and D are switched] slandered him in telling certain persons he drank to excess and was sexually promiscuous.
Opinion (Coler):
 TC may properly have determined that the plaintiff's reputation was so tarnished that it was not materially damaged by the alleged slander.
 Since damage to reputation is part of P's claim, evidence of P's reputation or misdeeds was admissible both in establishing truth and mitigating damages.
Advisory Committee Note to FRE 404(a)
 Character questions arise in two fundamentally different ways: 

o "Character in issue": character itself is an element of a crime,
claim, or defense.
 E.g., competency of driver in an action for negligently entrusting a motor vehicle to an incompetent driver.
 No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject.
o "Circumstantial": character evidence used to suggest an inference that the person acted on the occasion in question consistently with his character.
 E.g., evidence of honesty to disprove a charge of theft.
Most jurisdictions reject circumstantial use of character, but with important exceptions:
o (1) accused may introduced pertinent evidence of good character
(often misleadingly called 'putting character in issue').
 In this event, prosecution may rebut with evidence of bad character.
o (2) accused may introduce pertinent evidence of the character of the victim (as in support of claim of self-defense in homicide, or of consent in rape)
 Prosecution may then introduce similar evidence in rebuttal of the character evidence or, in a homicide case, to rebut a claim the deceased was the first aggressor, however proved.
o (3) character of witness may be gone into as bearing on his credibility.
Difficulty with expanding use of character evidence in civil cases is that character evidence is of slight probative value and may be very prejudicial.

McCormick on Evidence
 Argument against character evidence in criminal trials: to say defendant deserves benefit of all reasonable doubts and that good character may produce a reasonable doubt assumes what should be demonstrated—that the doubt is not the product of unfair prejudice.
 To the extent the ability to collect impressive character witnesses is concentrated among those accused of white collar rather than street crimes, the rule is unfairly asymmetrical.
 When character of the victim is being proved, there is a very different risk of prejudice: that the victim was bad and got what he deserved.
o At least in murder and maybe battery, when identity of first aggressor is really in doubt, probative value of evidence ordinarily justifies this risk.

B. Methods of Proving Character Introduction
 When one of the three exceptions apply, it typically only applies to testimony about a person's reputation, or a witness's own opinion about the person's character.
 Evidence of how the person has actually acted on other occasions remains excluded.
FRE 405. Methods of Proving Character
 (a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On crossexamination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.
 (b) By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.
FRE 803. Exceptions to the Rule Against Hearsay—Regardless of
Whether the Declarant Is Available as a Witness
 The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
 (21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.
Michaelson v. United States, 335 U.S. 469 (1948)
Facts:
 D convicted of bribing federal agent. D, as witness on his own behalf,
admitted passing money but claimed it was in response to agents demands, threats, or solicitations. The case came down to whether jury should believe agent or accused.
 D called five witnesses to prove he enjoyed a good reputation.
 P asked witnesses on cross-exam, over D's objection, "Did you ever hear that on October 11th, 1920, the defendant, Solomon Michelson, was arrested for receiving stolen goods?"
o TJ asked P whether D was really arrested, and P said yes and exhibited paper record to establish good faith, and D's counsel didn't challenge. [Must have good faith basis, and must be pertinent to current allegations.]
o TJ gave limiting instruction that jury should not assume the incident actually took place, and the evidence was only for purpose of reputation.
 CoA held evidence permissible.
Opinion (Jackson): Common-law tradition disallows resort by prosecution to any kind of evidence of defendant's evil character to establish probability of guilty.
o State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.
o Rejected not because it's irrelevant, but because it weighs too much, and disallowance prevents confusion of issues, unfair surprise and undue prejudice.
 Line of inquiry firmly denied to prosecution is opened to defendant because character is relevant in resolving probabilities of guilt.
 When defendant elects to initiate a character inquiry, defendant is permitted to call witnesses to testify from hearsay, but such a witness is not allowed to base his testimony on anything but hearsay.
o Witness can't testify about defendant's specific acts or possession of particular traits; can't testify that his own acquaintance,
observation, knowledge of defendant leads to his own independent opinion that D possesses a good character inconsistent with acts charged.
o Witness is allowed to summarize what he has heard. Reason is reputation is result of slow, disinterested accumulation of information over time. Justified by considerations of practical convenience in avoiding innumerable collateral issues.
 Law extends helpful but illogical options to defendant.
o For attempting to prove his good name, defendant must throw open the entire subject. Prosecution can pursue inquiry with contradictory witnesses, ask bases of opinion. [Defense counsel cannot, on re-direct exam, ask follow up questions about specificevent questions asked by prosecution.]
 Wide-discretion is accompanied by heavy responsibility on trial courts to protect the practice from misuse.
o Trial court here was scrupulous to guard it.
o The question permitted was proper cross-examination because reports of D's arrest for receiving stolen goods, if admitted, would tend to weaken the assertion he was known to be an honest and law-abiding citizen.
o Limiting instructions on this subject are no more difficult to comprehend or apply than others.
Dissent (Rutledge):
 Form of the question was itself notice of the fact to the jury. It told the jury what the P was not allowed to say directly and D had no chance to deny.
 The probative value was low and chance of prejudice high.

Advisory Committee Note to FRE 405

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