CHARACTER EVIDENCE and HABIT

*PERSONAL KNOWLEDGE: don’t forget. If you get character witnesses, they had to have known the person during the time period when the alleged act occurred.

1) Propensity evidence: (Prior act) Evidence of a person’s character or character trait is [USUALLY] not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. [FRE 404]

“Person” SOME say a corp (Corp doesn’t have character. counter: but managers do).

“Character trait” = (undefined by rules, but…) disposition to behave in certain ways that arises over a person’s moral being, from traits over which the person has some degree of control.

-Good proxy (some courts use): would this characteristic make people view them more/less favorably than otherwise.

-Not a medical condition.

Intemperance included, alcoholism?. Forgetfulness is, Alzheimer’s isn’t.

EXAMPLES OF OTHER USES: May be admissible (in specific act form) IF

*rape shield still applies: applies to all covered evidence, regardless of use. (text).

-HABIT EVIDENCE: (or organization’s “routine practice”)

-repeated, semiautomatic responses to a specific stimulus Or “business custom that is reasonably regular and uniform” (in the particular biz, OR the INDUSTRY)

Exs: routinely cleaning floor of the store; routinely texting while driving.

FACTORS:

*no corroboration or eyewitness requirement (FRE 406). Opinion evidence allowed.

-specificity of the conditions where the habit supposedly occurs.

-specificity with which the habit is described.

Ex: ‘habit of telling lies when truth seems inconvenient’ Not a habit.

Ex: “drinks a fifth daily” = Habit. “drunkard” = character.

-(MAJ) Probability theory:

-frequency and regularity of the behavior

-ratio: compare # of times met w/ stimulus to # of times acted a certain way

Ex: some courts have recognized as few as two (!) prior instances.

-(MIN) Psych theory: automated nature of behavior: sufficient # of repetitions to make auto

-negative habit: that person DIDN’T do something. Must be proven same way, have to show frequent opportunities to do the behavior, but refrained from it.

-intemperate habits should be excluded (Committee notes)

BUT courts often ignore. Some allow drinking; drug dealing habit evidence.

=>Can be used to prove that on an occasion the person/organization acted in accordance w/ the habit. 406

-OTHER PURPOSE [FRE 404(b)(2)] not being offered for character trait/propensity. Instead…

a) Crim case: prosecutor must give reasonable notice BEFORE TRIAL (unless court excuses for good cause) to the accused of the general nature of such evidence they intend to offer.

b) Huddleston (use 104(b)): Sufficient admissible evidence that would lead a reasonable jury to conclude that it was more likely than not true that these acts occurred.

c) Certain uncharged/charged misconduct (specific act evidence of a crime, wrong, etc) may be admissible for non-propensity purposes, with no time limitation (could be after the events in issue),

*generally: courts lenient in finding these. Just avoid explicit character reasoning.

EXAMPLES INCLUDE…

-knowledge (of how to perform the acts in question in the case),

Ex: ex-gf saying man told her he knew how to kill her without blood and hide the body.

-opportunity: narrows group of potential wrongdoers, places D in group

DeJohn: Previous acts of false checks showed ability to access the same location.

-motive: explanation for why they might’ve committed crime.

-Generally, motive should be specific, rather than just a general motive. BUT…

Cunningham (Posner): One example: motivated by a taste/compulsion for a particular crime (as opposed to desire for other advantage that crime was just a means to get ($$$)).

Boyd: D charged w/ MJ trafficking. Evidence of motive – that he personally used MJ. Needed to finance his drug habit ……..

NEXT PAGE FOR OTHER PERMISSIBLE USES

-modus operandi: several identifying characteristics or distinctive qualities btwn the two acts such that reasonable jury to conclude that same person committed both. (Can be defensive too)

-identity (ex: handwriting confirmation)

-Plan/common scheme/narrative integrity (res gestae)- other acts were connected to the legal claim at issue in the case. Help jury understand how/why it happened. (yacht insurance example)

Ex: reckless driving. Evid. of were fleeing from bank robbery explains driving.

-preparation: show prior acts as part of the plan to commit the crime/tort at issue.

(ex: stealing crowbar for future burgling).

-lack of accident: similar thing happened before, chances that current act was an accident are low. (Doctrine of chances: many times)-would’ve taken extra precautions after the 1st time

Ex: guy says he shot his wife by accident. Evidence that D had previously shot his first wife and claimed accident. Less likely that the instant case was an accident.

-intent: D claims not to have had intent, but has committed other crimes with similar intent.

*problematic, but courts regularly allow despite 403.

Beechum: postal worker accused of stealing silver dollar from mail. Evidence of intent to steal – possession of fraudulent credit cards w/ addresses on his route. Unlikely that he had intent to return the silver dollars but not report the fraudulent credit cards.

Crocker: D convicted of conspiracy to forge bank checks. Drove buddy to the bank. Arrested for same thing 10 yrs ago. Intent: hows knew what his friend was doing inside

d) 403 balancing usually needed: Probative value for acceptable purpose must substantially outweigh the dangers, like use for propensity reasoning.

-CHARACTER “IN ISSUE” (rare)

=The trait or character is an essential element of the claim, crime, or defense. (here, it’s not being used circumstantially, its directly the issue in the case, so can use specific instances evidence, as well as reputation and opinion.) [FRE 405] Substantive law makes a character trait relevant.

Counter-example: embezzlement, same elements...

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