CHARACTER/HABIT & ROUTINE

Introduction

Character=generally refers to a persons tendency to act consistently w/ certain mental & ethical traits

Character is something internal to a person

Psychological traits of a certain sort, and perhaps partly defined by external observable actions

The admissibility of character evidence is an issue of relevance under 403, which requires the balancing of probative value & danger of substantial unfair prejudice

General Rule Excluding Character Evidence

Rule 404(a) Character evidence generally: Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except…

Rational is that we want to judge people on what they actually did in THIS case, not on what they are likely to have done in past cases.

So if want to introduce other crimes, will generally have to show is not for purpose of character but rather is for something like motive or knowledge or intent

Exceptions to the General Rule: Character of D in a Criminal Case

Rule 404(a)(1) Character of the Accused:

in a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to REBUT the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution

This is considered the “Mercy Rule” and allows the D to present evidence of his good character to the degree it is “pertinent’ to the crime he is charged with.

It may only be done by general reputation (what community thinks of you) testimony or opinion (what actual witness thinks & has personal judgment on) testimony but not specific instances of conduct unless is on cross examination.

The witness for reputation or opinion must have some sort of personal connection/knowledge to show that would have adequate opportunity & reason to know of the reputation

Rule 405. Methods of Proving Character

Whenever a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinon. On cross-exam, inquiry is allowable into relevant specific instances of conduct.

Can’t ask for specific details and must take the witnesses answers and the specific instances must be pertinent to and w/in the scope of the direct examination

Prosecution’s Options in Response to “mercy rule” witnesses:

Can cross examine D’s witness by asking if has heard of specific bad acts of D that rebut the positive character testimony on direct exam

Must ask these in good faith and have a reason to believe D committed the specific acts

If challenged must present records or credible source

Can present own witnesses to testify D bad reputation but only after D has “opened the door” by presenting “Mercy Rule” witnesses.

Rule 413-415: D Character in Sexual Assault & Child Molestation Cases

Basically in criminal & civil cases it allows use of evidence of prior sexual misconduct evidence to be used to show D has high propensity to commit the crime again.

Exceptions to the General Rule: Character of the Victim in a Criminal Case

Rule 404(a)(2). Character of Alleged Victim;

“in criminal case, and subject to limitations imposed by Rule 412, evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a trait of peacefulness of the victim by the prosecution in a homicide case to rebut evidence that the alleged victim was the 1^st aggressor.

Allows D to present evidence concerning the character of the victim as long as it relates to a “pertinent” trait

Determined by considering the charges & defenses in the case

Once D presents evidence of victims character, the prosecution have 4 options for responding:

Rule 405 (a): cross-exam D witness who attacked vicitm’s character w/ specific acts showing peaceful nature

404(a)(2) present own reputation & opinion witness on rebuttal who testifies that vic is peaceful

404(a)(1) present reputation & opinion witness who attacks D character for being violent

404(a)(2): only avail in Homicide case. If D says self-defense, then prosecution can have rep and opinon witness testify to vic. peacefulness

Rule 405

Whenever a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinon. On cross-exam, inquiry is allowable into relevant specific instances of conduct.

Rule 412: Victims Character in a Sex Offense Case; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition

Evidence generally Inadmissible- the following evidence isn’t admissible in any civil or criminal proceeding involving alleged sexual conduct except under (b) & (c):

Evidence offered to prove that any alleged victim engaged in other sexual behavior

Evidence offered to prove any alleged victim’s sexual predisposition

Exceptions:

In a CRIM case, the following is admissible if otherwise admissible under the rules:

Evidence of specific instances of sexual behavior by alleged victim offered to prove that a person other than the accused of the misconduct was the source of semen, injury, or other physical evidence (d argues not perpetrator)

“ “ “ offered by the accused to prove consent or by the prosecution; and (btwn D & V on other occasion)

Evidence the exclusion of which would violate the constitutional rights of the D.

In civil case, is admissible if it is otherwise admissible under rules & its PROB VALUE SUBSTANTIALLY OUTWEIGHS the danger of any harm to any victim & of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim

Procedure to determine Admissiblity

Party intending offer such evidence must

(a)file written...

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