1. Character Evidence

2. CHARACTER EVIDENCE (cont.)  Character Evidence: refers to the use of evidence of a person’s character to prove that on a given occasion that person acted in conformity with his or her character.

3. CHARACTER EVIDENCE (cont.)  3 types of character evidence:  specific instances of conduct  opinion evidence  reputation evidence

4. CHARACTER EVIDENCE (cont.)  Ed the crooked car salesman hypo:  Ed sells friend#1 lemon car  Ed sells friend #2 lemon car

5. CHARACTER EVIDENCE (cont.) Reasons to exclude character evidence:  1. turns one trial into multiple trials – risk and cost of trials within trials

6. CHARACTER EVIDENCE (cont.) Reasons to exclude character evidence:  2. danger that the finder of fact may become confused about the issues to be decided

7. CHARACTER EVIDENCE (cont.) Reasons to exclude character evidence:  3. Risk that the jury may unjustifiably return a verdict against the party against whom the character evidence has been offered

8. CHARACTER EVIDENCE (cont.) This concern (the jury may unjustifiably return a verdict based on character) is based on several assumptions:  that the fact finder will overestimate the probative value of character evidence – if jurors learn that the party previously engaged in similar misconduct, they may jump to the unwarranted conclusion that the party must be guilty of the misconduct charged

9. CHARACTER EVIDENCE (cont.) This concern (the jury may unjustifiably return a verdict based on character) is based on several assumptions:  that the character evidence will invite jurors to convict defendant because he is a bad person

10. CHARACTER EVIDENCE (cont.) This concern (the jury may unjustifiably return a verdict based on character) is based on several assumptions:  that jurors may seek to even the score – convict in present case for bad acts in prior case

11. CHARACTER EVIDENCE (cont.)  Basic concept in our criminal justice system: individuals are accountable only for what they do and not for what they are  e.g. Can convict for possession of drugs but not for being an addict DUI vs being an alcoholic Rape vs sexual deviant

12. CHARACTER EVIDENCE (cont.)  Evid.Code §§ 1100-1109  Sec. 1100 – all relevant character evidence admissible unless otherwise limited by statute  No equivalent rule in FRE

13. CHARACTER EVIDENCE (cont.)  Sec 1101(a) – character evidence or evidence of a trait of character inadmissible to prove conduct on a specific occasion (reputation, opinion or specific instance of conduct)  FRE 404(a) same

14. Exceptions to proving conduct on a specific occasion  Evid. Code §1101(b) and FRE 404(b) – another class

15. Exceptions to proving conduct on a specific occasion (cont.)  Evid. Code §1102 and FRE 405(a)  defendant can offer evidence of his good character and prosecution can rebut it  But, defendant limited to opinion and reputation evidence – no specific instances of conduct

16. Exceptions to proving conduct on a specific occasion (cont.):  FRE 405(a) – rebut with all 3 types  Evid. Code §1102 -- prosecution may rebut with opinion and reputation;  specific instances of conduct by way of “have you heard…?” questions

17. Exceptions to proving conduct on a specific occasion (cont.):  Rebuttal with specific instances of conduct: People v. Ramos (1997) 15 Cal.4 th 1133, 1173 [when a defense witness other than the accused testifies to good reputation of accused, prosecution may inquire into specific acts or conduct that are inconsistent] prosecution must have good faith belief have you heard questions and would it change your opinion questions prosecution cannot prove through extrinsic evidence Here, defense wit. testifies to D’s piety Rebuttal: D caught with shank 5x

18. Exceptions to proving conduct on a specific occasion (cont.):  Why does prosecutor get to rebut good character evidence specific instances of conduct when defendant is barred from doing so in establishing good character?

19. Exceptions to proving conduct on a specific occasion (cont.):  Whether defendant did the act in the prior specific instance is not material  Instead, the material issue is testing the credibility of the character witness and the probative quality of their testimony and not whether defendant committed that prior act

20. Exceptions to proving conduct on a specific occasion (cont.):  For the same reasons, defendant is precluded from disproving prior bad act or explaining the circumstances surrounding it

21. Exceptions to proving conduct on a specific occasion (cont.):  Evid. Code § 1103 and FRE 404(a)(2)  defendant may offer character evidence of victim – opinion, reputation or specific instances of conduct – to prove conduct of victim in conformity with the character evidence  prosecution may rebut with all three types Reputation, opinion & specific instances of conduct

22. Exceptions to proving conduct on a specific occasion (cont.):  Evid. Code § 1103 and FRE 404(a)(2)  if defendant offers evidence of victim’s character for violence, prosecution may offer evidence of defendant’s character for violence  All 3 types: reputation, opinion and specific instances of conduct

23. Exceptions to proving conduct on a specific occasion (cont.):  Evid. Code § 1103 and FRE 404(a)(2)  exception to exception: in sexual assault prosecution – defendant cannot offer any of 3 types against victim to show that victim consented  Rape shield law –see also 782 and FRE 412  Does not apply to prior history between defendant and victim

24. Exceptions to proving conduct on a specific occasion (cont.):  character at issue in litigation:  1. defamation  a. where existence or non existence of the trait attributed by defendant to the plaintiff;  b. to mitigate damages by showing that plaintiff’s reputation was so bad as to not be harmed by defendant’s untruthful statements

25. Exceptions to proving conduct on a specific occasion (cont.):  character at issue in litigation:  2. wrongful death  a. re: damages to show decedent’s predisposition to provide support, consortium, love etc to survivors

26. Exceptions to proving conduct on a specific occasion (cont.):  character at issue in litigation:  3. negligent entrustment – to show operator’s unfitness to operate the particular instrumentality

27. Exceptions to proving conduct on a specific occasion (cont.):  character at issue in litigation:  4. wrongful discharge/termination – to show employee’s unfitness for job

28. Exceptions to proving conduct on a specific occasion (cont.):  character at issue in litigation:  5. sexual harassment suit –  a. hostile work environment – behavior with other workers

29. Exceptions to proving conduct on a specific occasion (cont.):  character at issue in litigation:  6. child custody proceedings – to show who is most fit to parent

30. Exceptions to proving conduct on a specific occasion (cont.):  character at issue in litigation:  7. juvenile dependency proceedings – on issue of termination/reinstatement of parental rights

31. Exceptions to proving conduct on a specific occasion (cont.):  character at issue in litigation:  8. malicious prosecution – to show defendant’s lack of probable cause to believe plaintiff committed bad act, particularly where defendant knew of plaintiff’s good character

32. Related Concepts  Subsequent Remedial Conduct FRE 407; Evid. Code § 1151  Offers of Compromise FRE 408; Evid. Code § 1152  Payment of Medical Expenses FRE 409; Evid. Code § 1152  Liability Insurance FRE 410; Evid. Code § 1155  Pleas and Plea Discussions FRE 411; Evid. Code § 1153

33. Habit evidence  FRE 406 Evid. Code §1105  not an exception to ban on character evidence to prove conduct on a specific occasion – it is its own rule  “a regular response to a repeated specific situation”