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:

  • 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.

  • (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.

  • (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.

  • 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.

  • Must avoid blurring issues by evidence illegally admitted and carrying appeal to prejudice and passion.

• Evidence here was inadmissible.

  • Prosecutor and judge harped on the inadmissible evidence.

  • 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,

  • 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.

  • 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:

  • Pistols had been bought in expectation of a particular encounter.

    • Admissible as evidence of preparation and design.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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:

  • 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...

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