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Character And The Confrontation Clause Outline

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This is an extract of our Character And The Confrontation Clause document, which we sell as part of our Evidence Outlines collection written by the top tier of Oklahoma City University School Of Law students.

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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

(a) 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: (1) 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 (2) 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 1st 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: (1) Rule 405 (a): cross-exam D witness who attacked vicitm's character w/ specific acts showing peaceful nature (2) 404(a)(2) present own reputation & opinion witness on rebuttal who testifies that vic is peaceful (3) 404(a)(1) present reputation & opinion witness who attacks D character for being violent (4) 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

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