Character Evidence (Flowchart)

What are the four steps to analyze evidence of character, extrinsic acts, or habit?

1. Is the evidence relevant? (materiality & probative value)

2. Is the evidence subject to FRE 404-406?

3. Are there other problems with the form of evidence (seperate from issues addressed by 405)?

4. Should the evidence be barred under FRE 403? (prejudice, confusion, waste of time)

What is character evidence? (404(a))

Evidence of a person’s disposition or propensity to engage or not engage in certain types of behavior

Ex. Character for dishonesty, peacefulness, violence, etc

Is character evidence generally admissible to prove that on a particular occasion the person acted in accordance with the character or trait? Do any exceptions apply?

No; Exceptions = criminal cases (character of defendant, victim, and witnesses)

When is character in issue?

When character is an essential element of a charge, claim, or defense

Ex. insanity defense, entrapment defense, civil claim for negligent entrustment

If character is in issue, what can character evidence be presented as?

Direct proof

If character is in issue, what three types of evidence can character be proven by?

1. Opinion

2. Reputation

3. Specific acts

If character is not in issue, what can character evidence be presented as?

Circumstantial proof for certain narrow purposes

If character is not at issue in a criminal case, what three purposes can character evidence be used for?

1. Proving character of defendant

2. Proving character of victim

3. Proving character of witness (limitations set forth in evidence rules regarding witnesses)

If character is not at issue in a criminal case, and the purpose of character evidence is to prove the character of the defendant, what rules apply?

1. Only defendant can lead case in chief with evidence of character

2. Prosecution may rebut such evidence

3. If defendant attacks an aspect of victims’ character, prosecution may offer evidence that defendant has the same trait

If character is not at issue in a criminal case, and the purpose of character evidence is to prove the character of the victim, what rules apply?

1. Only defendant can lead case in chief with evidence of character of victim

2. Prosecution may rebut such evidence

3. In homicide cases only, prosecution may offer evidence of victim’s peacefulness if defendant presented evidence indicating that the victim was the aggressor

If character is not at issue in a civil case, what purpose can character evidence be used for?

Proving character of witnesses

If character is not in issue, what two types of evidence can it be proven by?

1. Opinion

2. Reputation

**NOT specific acts

If character is not at issue and it is proven by opinion and reputation evidence, what can the opponent of the character evidence do on cross?

On cross examination, opponent of character evidence can refer to specific instances of conduct, even though proponent could only present opinion and reputation

What is evidence of extrinsic acts?

Aka prior bad acts (can really be “bad” or “good” acts)

May either predate or postdate events that are the focus of trial

Can evidence of extrinsic acts themselves be used to show propensity to commit a crime or conduct an act?

No; however, when character is in issue, specific acts can be used to show propensity

What purposes can evidence of extrinsic acts be used for, if not propensity inference?

1. Proof of motive

2. Proof of opportunity

3. Proof of intent

4. Proof of preparation

5. Proof of plan

6. Proof of identity

7. Proof of absence of mistake

What other requirements apply to evidence of extrinsic acts?

1. Criminal defendant must receive pretrial notice of govt intent to use

2. Proof of extrinsic act must be sufficient for reasonable jury to find that the extrinsic act actually occurred

3. Some jurisdictions require the extrinsic act to be close in time

4. Some jurisdictions require the extrinsic act to be similar in nature

With extrinsic acts evidence, what special rules apply to sexual assault and child molestation cases?

1. In criminal sexual assault cases, a evidence of a victim’s sexual history is barred (even if offered to prove identity or prior consensual sex)

2. In criminal sexual assault cases, evidence of prior similar acts is admissible and pretrial notice is required

3. In criminal child molestation cases, evidence of prior similar acts is admissible and pretrial notice is required

4. For civil sexual assault and child molestation cases, evidence of prior similar acts is admissible and pretrial notice is required

What is evidence of habit?

Evidence of a person’s regular practice of meeting a particular kind of situation with a specific type of conduct

Whose habit can be proven under evidence of habit rule?

A person or an organization

What criteria do courts consider in determining whether the conduct at issue constitutes a habit?

1. Regularity of conduct

2. Specificity of conduct

3. Extent to which conduct is automatic and unreflective

How can habit evidence be used?

To support inference of propensity

If habit evidence is used to support inference of propensity, what else is necessary?

Nothing; no corroborating evidence or eyewitness testimony is necessary

What two categories of the form of character/extrinsic act/habit evidence can cause issues?

1. Testimony

2. Documents or other physical evidence

What issues can arise with character/extrinsic act/habit evidence in the form of testimony?

1. Competency issues

2. Hearsay issues

3. Privilege issues

What issues can arise with character/extrinsic act/habit evidence in the form of documents/physical evidence?

1. Authentication issues

2. Best evidence issues

3. Hearsay issues

4. Privilege issues