Problem 3A – 3B (Rule 404 and the Criminal Case Exceptions)

Wanda’s Testimony D walked up to V, called V a “dirty SOB,” pulled wrench from purse, & hit V in the head with it. Any 404 problems? Isn’t D’s calling V a “dirty SOB” a PBA under 404?

Dirty SOB Testimony Folks who call others SOB’s are SML to be violent folks D called V a “dirty SOB” D killed V D has a violent character Folks who are violent are SML to kill others Intermediate Fact Wanda Forbidden Character Propensity Inference

Alternative Inference One who calls X a “dirty SOB” is SML to be angry at X D called V a “dirty SOB” D killed V D was angry at V One who is angry at X is SML to kill X Intermediate Fact Forbidden Character Propensity Inference?? Wanda Not a Character Trait No! Not a Character Inference

D’s “Dirty SOB” comment is not a Prior BA anyway. Extrinsic v. Intrinsic Conduct -- see last paragraph of ACN to 1991 Amendments Res Gestae (Complete Story) Principle -- See PLG 5.27

Willy’s Testimony A year ago, D hit Orville in the knee with a baseball bat. Pertinent Trait? Specific Act? Opinion? Reputation?

Willy’s Baseball Bat Testimony Folks who hit others w/ bats are SML to be violent people 1 yr ago, D hit O with BB bat D killed V D is a violent person People who are violent are SML to kill Forbidden Character Propensity Inference? Yes Criminal Case Exception? No Prosecutor can’t attack first Any other problem? Can’t Use Specific ActsWhat Rule? ________ 405

Connie Counselor’s Testimony D is subject to fits of rage & anger. Pertinent Trait? Specific Act? Opinion? Reputation? Connie

Connie’s “Rage & Anger” Testimony D subject to fits of rage & anger D killed V People who are subject to fits of rage & anger are SML to kill Forbidden Character Propensity Inference? Connie Counselor Yes Criminal Case Exception? No Prosecutor can’t attack first.

I have known D for years and she is a non-violent and truthful person Specific Act? Opinion? Reputation? Mayor’s Testimony about Doris Pertinent Trait? truthful and

Disaggregate

D is not violent Mayor’s Testimony about Doris D is truthful

Mayor’s Testimony about Doris Not pertinent trait for killing. Is pertinent character trait for credibility But witness credibility rules are different D is truthful

D is not violent Mayor’s Testimony about Doris

Mayor’s testimony: D is non-violent D is completely non-violent D did not kill V People who are non-violent are somewhat less likely (SLL) to kill Forbidden Character Propensity Inference? Mayor Yes Criminal Case Exception? Yes Defendant can offer character evidence first. Any 405 problem? It’s OK because opinion.

Criminal Case Exceptions for Defendant (the “Mercy Rules”) D may offer his own good character traits if the traits are pertinent D may offer victim’s character traits if the traits are pertinent

Prosecutor Now offers Counselor’s Testimony D is subject to fits of rage & anger. Connie D is not violent Mayor Earlier Testimony Now

Counselor’s Testimony in Rebuttal D subject to fits of rage & anger D killed V People who are subject to fits of rage & anger are SML to kill Forbidden Character Propensity Inference? Connie Counselor Yes Criminal Case Exception? Yes P can rebut w/bad character once D has offered good character.

Criminal Case Exceptions for Prosecutor (the “Rebuttal Rules”) If D has offered evidence of D’s own good character, P may rebut with evidence of D’s bad character. If D has offered evidence of V’s bad character, P may rebut with evidence of V’s good character. In homicide case, if D has offered evidence that V was 1st aggressor, P may rebut with pertinent evidence of V’s good character -- even though D has not attacked V’s character.

P Now Offers Baseball Bat Testimony A year ago, D hit Orville in the knee with a baseball bat.

Baseball Bat Testimony as Rebuttal Folks who hit others w/ bats are SML to be violent people 1 yr ago, D hit O with BB bat D killed V D is a violent person People who are violent are SML to kill Forbidden Character Propensity Inference? Yes Criminal Case Exception? Yes Prosecution can rebut because D has opened door (offered good character) Any other problem? Still Can’t Use Specific ActsDon’t forget rule ________ 405

Rule 405 and Specific Acts Specific acts can be used to prove character only if the character trait is “an essential element of the charge, claim or defense.” Isn’t violent character an essential element of murder?

What can P do with baseball bat incident? Ask Mayor Marvin about it on cross. But Doris has never been charged or convicted of the baseball bat assault. Still permitted to ask so long as P has: a good faith basis for believing the incident really happened.

D Offers Mayor’s Testimony About V & W V& W are known as violent folks who frequently engage in armed robbery. Mayor Specific Act? Opinion? Reputation? Pertinent Trait?

D Offers Mayor’s Testimony About V & W Mayor W is known to rob W is known as a violent person V is known as a violent person V is known to rob

D Offers Mayor’s Testimony About V & W Mayor V is known as a violent person

People who are violent are SML to attack first. Mayor: V is known to be violent Most folks believe V is a violent person V attacked first If most folks think X is true, it is SML that it is true. Forbidden Character Propensity Inference? Mayor Yes Criminal Case Exception? Yes Defendant can offer victim’s character evidence first. Any 405 problem? It’s OK because reputation. Second Mercy Rule V is a violent person

D Offers Mayor’s Testimony About V & W Mayor W is known as a violent person Does this fit under any exception

Criminal Case Exceptions for Prosecutor (the “Rebuttal Rules”) If D has offered evidence of D’s own good character, P may rebut with evidence of D’s bad character. If D has offered evidence of V’s bad character, P may rebut with evidence of V’s good character. In homicide case, if D has offered evidence that V was 1st aggressor, P may rebut with pertinent evidence of V’s good character -- even though D has not attacked V’s character.

Criminal Case Exceptions for Defendant (the “Mercy Rules”) D may offer his own good character traits if the traits are pertinent D may offer victim’s character traits if the traits are pertinent

Is Wanda a Victim Is Wanda a victim?

Purpose vs. Language

Mayor: “They frequently rob.” Mayor W is known to rob V is known to rob Is this different? Is it a character trait? If so, is it a pertinent trait?

P Offers Rabbi Ralph’s Testimony V was truthful, timid & peaceable. Rabbi Ralph Specific Act? Opinion? Reputation? Pertinent Trait? Disaggregate

Rabbi: V timid & peaceable. V was peaceable & timid V did not attack first People who are timid & peaceable are SLL to attack first Forbidden Character Propensity Inference? Yes Criminal Case Exception? Depends on when P offers it. Rabbi Ralph

When is it offered V was peaceable & timid V did not attack first People who are timid & peaceable are SLL to attack first Rabbi Ralph Criminal Case Exception? Offered in P’s Case in Chief

When is it offered V was peaceable & timid V did not attack first People who are timid & peaceable are SLL to attack first Rabbi Ralph Criminal Case Exception? After Mayor’s “V is violent” testimony

When is it offered V was peaceable & timid V did not attack first People who are timid & peaceable are SLL to attack first Rabbi Ralph Criminal Case Exception? After Doris testifies but D doesn’t call Marvin

Problem 3B Do Problem 3B

Connie’s Testimony After the Mayor’s Mayor V is known as a violent person D is subject to fits of rage & anger. Connie

Criminal Case Exceptions for Prosecutor (the “Rebuttal Rules”) If D has offered evidence of D’s own good character, P may rebut with evidence of D’s bad character. If D has offered evidence of V’s bad character, P may rebut with evidence of V’s good character. In homicide case, if D has offered evidence that V was 1st aggressor, P may rebut with pertinent evidence of V’s good character -- even though D has not attacked V’s character.

The New Rebuttal Rule If D has offered evidence of V’s bad character, P may rebut with evidence of D’s bad character. (Must be same trait)

Don’t Forget Rule 404 applies to good character as well as bad character. Rule 404 does not forbid using character evidence when character is an element of the charge, claim, or defense.

Good Character or Civil Cases D is a safe driver D was speeding before wreck Safe drivers are SLL to speed Forbidden Character Propensity Inference? Someone who often sees D driving Yes: Good Character Testimony Covered by Rule 404 too. What if it’s a civil case? The basic propensity evidence rule applies to civil cases too. But the criminal case exceptions do not.

Negligent Hiring Case Need to Show that EE Was Violent EE is a violent person No Evidentiary Hypothesis Necessary Connie Counselor Forbidden Character Propensity Inference? No

Another Negligent Hiring Case: Need to Show EE was Violent Person Folks who hammer others are SML to be violent people EE hit Jim in the head w/hammer EE is a violent person No Evidentiary Hypothesis Necessary Forbidden Character Propensity Inference? No