Character Evidence Rules - In General Public policy, as reflected in the rules of evidence, generally prohibits “character evidence” to prove conduct in conformity with that character trait. The reasons for this are: The idea that each case should be judged on its individual merits, not based on what happened in the past. To prevent a jury from “punishing” a person for past conduct during a trial unrelated to that past conduct. To prevent the jury from being prejudiced against a party. Therefore, the character evidence rule generally prohibits: Testimony about a character trait; AND Testimony about “prior acts” that show a character trait. Evidence Lecture 6

Evidence of General Character Traits Rule 404(a) provides: Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion The rule does provide three exceptions: Certain character evidence to assist a criminal defendant in a criminal trial. 404(a)(1) Certain character traits of an alleged victim in a criminal case. 404(a)(2) Certain character evidence of a witness. 404(a)(3) Another exception in general applies where the character trait is a key element of the case. e.g., in the case of insanity defense Evidence Lecture 6

Character of the Accused Rule 404(a)(1) allows character evidence as follows: Character of 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 applies only to criminal cases, and it allows: Evidence adduced by the defense to show (good) character on the part of the defendant. If the defense brings up such evidence, the prosecution may bring up evidence to rebut it (“opening the door”). Evidence of (good) character may be brought by the prosecution to “rehabilitate” the victim if the victim’s character was attacked by the defense. Evidence Lecture 6

Character of the Alleged Victim Rule 404(a)(2) allows character evidence as follows: Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same; or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor. This allows: A criminal defendant, in making a self defense claim, to show that the victim’s character was violent so as to help the self-defense claim. It also allows the prosecution to rebut this evidence. If the defendant claims self-defense and bring in evidence that s/he has peaceful character, the prosecution may rebut this. Evidence Lecture 6

Character of a Witness Rule 404(a)(3) allows character evidence as follows: Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609. This rule (covered in more detail later in the course) allows for certain character evidence designed to impeach the credibility of witnesses. The evidence must be of a character trait that relates to the honesty of the witness, and not just poor character in general. Evidence Lecture 6

Prior Specific Acts The same rule generally prohibits evidence of prior acts to prove action in conformity with that trend. Rule 404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. The same reasons, as the character evidence rules discussed earlier, apply here as well. This applies only where the evidence is being used to show actions in conformity with the character traits evinced by the prior acts. Evidence Lecture 6

Exceptions to the Prior Acts Rule Rule 404(b) specifically allows prior acts to be used to show: motive opportunity intent preparation plan knowledge identity or absence of mistake or accident Evidence Lecture 6

Methods of Proving Character Where allowed under Rule 404(a), character of a person can be proven using the following types of evidence: Reputation or Opinion as to that person’s character This can be stated by any person familiar enough to be able to render an opinion If a person does this, the other party may bring up specific incidents of conduct to counteract the reputation or opinion evidence. Specific acts This can only be used to prove character if it related to “an essential element of a charge, claim, or defense” Or, of course, specific acts can be introduced under the exceptions in Rule 404(b). Evidence Lecture 6

The “Habit” Rule Rule 406. Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not, and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Although prior acts are generally not admissible to show action in conformity therewith, an exception is made when the prior acts are so frequent and systematic so as to establish that engaging in those acts is a persons’ “habit” or “routine practice” Evidence Lecture 6

Other Types of Evidence Excluded in Article 4 For similar policy reasons, Article 4 of the FRE also prohibits the following evidence from being introduced: Subsequent Remedial Measures to avoid discouraging the fixing of dangerous conditions Compromises or offers to compromise to avoid discouraging negotiation attempts Payments of medical and similar expenses to avoid discouraging these payments Pleas and pleas discussions again, to avoid discouraging negotiation Evidence of Liability Insurance or lack thereof the jury is supposed to decide the case based on its merits, not whether either side will “really” lose anything Evidence Lecture 6

Special rules in Sex Offense Cases- Rape Shield To encourage victims to come forward, the federal rules (and many states) prohibit or limit the ability of the defense to bring up the victim’s sexual history. Rule 412 does not allow the defendant to bring up: Evidence of prior sexual acts of the victim Evidence of sexual predisposition of the Defendant Exceptions: the Defense may prove these thing where: Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and Evidence the exclusion of which would violate the constitutional rights of the defendant. Evidence Lecture 6

Special rules in Sex Offense Cases - Prior Acts The federal rules also make wider allowances for bringing up prior acts in: Criminal prosecutions in sexual abuse cases Criminal prosecutions in child molestation cases Civil cases that are based on either of the above In such cases, the general rule is that evidence of prior similar offenses ARE admissible to prove action in conformity with the prior act. This applies even where there was no conviction for the prior act! There are certain notification requirements that require the defendant be given proper notice so as to be able to prepare a rebuttal to the charges of prior acts. Evidence Lecture 6