1. Evidence Prof. William A. Woodruff Federal Criminal Practice Seminar Nov 2, 2012 Raleigh, NC © 2012

3. “Character” evidence is admissible in a criminal case when: Character is an “essential element of a charge, claim or defense.” FRE 405(b) Character is an “essential element of a charge, claim or defense.” FRE 405(b) The accused offers his own character as a defense to the crime charged. FRE 404(a)(2)(A) The accused offers his own character as a defense to the crime charged. FRE 404(a)(2)(A) The accused offers the victim’s character FRE 404(a)(2)(B); subject to FRE 412 The accused offers the victim’s character FRE 404(a)(2)(B); subject to FRE 412 In a homicide case the gov’t offers V’s character for peacefulness to rebut D’s claim that V was first aggressor. FRE 404(a)(2)(C) In a homicide case the gov’t offers V’s character for peacefulness to rebut D’s claim that V was first aggressor. FRE 404(a)(2)(C)

4. “Character” evidence is admissible in a criminal case when: The accused is charged with sexual assault or child molestation. FRE 413-414 The accused is charged with sexual assault or child molestation. FRE 413-414 Impeach/rehabilitate a witness’ character for truthfulness. FRE 404(a)(3); 608-609 Impeach/rehabilitate a witness’ character for truthfulness. FRE 404(a)(3); 608-609

5. “Character” as an essential element The substantive law makes a trait of character an essential element The substantive law makes a trait of character an essential element Not a propensity use Not a propensity use Prove by specific acts, opinion, and/or reputation. FRE 405 Prove by specific acts, opinion, and/or reputation. FRE 405 Jacobson v. U.S., 503 U.S. 540 (1992)(When defendant claims entrapment, gov’t must prove beyond reasonable doubt that defendant was “predisposed to commit the criminal act prior to first being approached by government agents.”) Jacobson v. U.S., 503 U.S. 540 (1992)(When defendant claims entrapment, gov’t must prove beyond reasonable doubt that defendant was “predisposed to commit the criminal act prior to first being approached by government agents.”)

7. “Character” of the accused Accused may offer a “pertinent trait” of character as a defense, but gov’t can rebut. FRE 404(a)(2)(A) Accused may offer a “pertinent trait” of character as a defense, but gov’t can rebut. FRE 404(a)(2)(A) Prove by opinion and/or reputation, but not specific acts. FRE 405(a) Prove by opinion and/or reputation, but not specific acts. FRE 405(a) US v MacDonald, 485 F. Supp. 1087, 1094 (EDNC 1979), aff’d 688 F.2d 224 (4 th Cir. 1982) excluding defense psychiatric testimony under FRE 403 because “Numerous lay witnesses most of whom were highly intelligent and articulate, professional and business people, had already testified to the defendant's character traits of peacefulness, non-violence, rationality and compassion for his fellow man.” US v MacDonald, 485 F. Supp. 1087, 1094 (EDNC 1979), aff’d 688 F.2d 224 (4 th Cir. 1982) excluding defense psychiatric testimony under FRE 403 because “Numerous lay witnesses most of whom were highly intelligent and articulate, professional and business people, had already testified to the defendant's character traits of peacefulness, non-violence, rationality and compassion for his fellow man.”

8. “Character” of the accused charged with sexual assault or child molestation FRE 413 & 414 allow prosecution to offer specific acts to prove defendant’s propensity to commit crime charged. FRE 413 & 414 allow prosecution to offer specific acts to prove defendant’s propensity to commit crime charged. FRE 403 is still applicable, but the propensity argument enhances the probative value, not the prejudicial effect. FRE 403 is still applicable, but the propensity argument enhances the probative value, not the prejudicial effect. US v. Kelly, 510 F.3d 433, 438 (4 th Cir. 2007)(While the prior conviction [for child rape] was undoubtedly prejudicial to Kelly's defense, it was not unfairly prejudicial. Rather, it was prejudicial “for the same reason it is probative— it tends to prove [the defendant's] propensity to molest young children.” US v. Kelly, 510 F.3d 433, 438 (4 th Cir. 2007)(While the prior conviction [for child rape] was undoubtedly prejudicial to Kelly's defense, it was not unfairly prejudicial. Rather, it was prejudicial “for the same reason it is probative— it tends to prove [the defendant's] propensity to molest young children.”

9. “Character of the victim Accused can offer “pertinent trait” of victim’s character, subject to FRE 412. FRE 404(a)(2)(B) Accused can offer “pertinent trait” of victim’s character, subject to FRE 412. FRE 404(a)(2)(B) Placing victim’s character in issue by accused opens the door to same trait in the accused. FRE 404(a)(2)(B)(ii) Placing victim’s character in issue by accused opens the door to same trait in the accused. FRE 404(a)(2)(B)(ii) Gov’t can offer victim’s character for peacefulness in homicide case to rebut claim that victim was first aggressor. FRE 404(a)(2)(C) Gov’t can offer victim’s character for peacefulness in homicide case to rebut claim that victim was first aggressor. FRE 404(a)(2)(C) Prove character by reputation/opinion FRE 405. Prove character by reputation/opinion FRE 405.

11. “Character” of the victim US v. Drapeau, 644 F.3d 646 (8 th Cir 2011)(404(a)(2)(B) permits accused to offer a pertinent trait of victim’s character, but specific acts are not admissible to establish the character trait.) US v. Drapeau, 644 F.3d 646 (8 th Cir 2011)(404(a)(2)(B) permits accused to offer a pertinent trait of victim’s character, but specific acts are not admissible to establish the character trait.)

12. “Character” of a witness FRE 404(a)(3) refers to FRE 607, 608, & 609 to regulate character of a witness FRE 404(a)(3) refers to FRE 607, 608, & 609 to regulate character of a witness FRE 607: Any party can impeach any witness FRE 607: Any party can impeach any witness FRE 608(a): limited to character for truthfulness or untruthfulness; character for truthfulness only permitted if evidence of untruthful character has been offered; proof limited to reputation and/or opinion FRE 608(a): limited to character for truthfulness or untruthfulness; character for truthfulness only permitted if evidence of untruthful character has been offered; proof limited to reputation and/or opinion

13. “Character of a witness FRE 608(b): Specific acts of truthfulness or untruthfulness not permitted. May, in discretion of the court, inquire into specific acts, other than convictions, probative of truthfulness or untruthfulness on cross of character witness. FRE 608(b): Specific acts of truthfulness or untruthfulness not permitted. May, in discretion of the court, inquire into specific acts, other than convictions, probative of truthfulness or untruthfulness on cross of character witness. FRE 609: Admits certain prior convictions to attack character for truthfulness of a witness. FRE 609: Admits certain prior convictions to attack character for truthfulness of a witness.

14. Opening the Door to the Criminal Defendant’s Character General Rule: General Rule: Evidence of the defendant’s character is not admissible to prove he acted in conformity with that character trait on the day in questions unless: Evidence of the defendant’s character is not admissible to prove he acted in conformity with that character trait on the day in questions unless: The defendant offers evidence of his own character (FRE 404(a)(2)(A)) The defendant offers evidence of his own character (FRE 404(a)(2)(A)) The defendant offers evidence of the victim’s character (FRE 404(a)(2)(B)) The defendant offers evidence of the victim’s character (FRE 404(a)(2)(B)) The defendant is charged with sexual assault or child molestation (FRE 413-414) The defendant is charged with sexual assault or child molestation (FRE 413-414) “Once a defendant has provided any relevant [character] testimony through any witness…he has ‘offered’ [character] testimony….” Fannon v. Johnston, 88 F.Supp. 2d 753 (E.D. Mich. 2000) “Once a defendant has provided any relevant [character] testimony through any witness…he has ‘offered’ [character] testimony….” Fannon v. Johnston, 88 F.Supp. 2d 753 (E.D. Mich. 2000)

16. Inadvertently Opening the Door Opening Statement Opening Statement Opening statement is not evidence Opening statement is not evidence Mentioning defendant’s good character in opening statement is not offering evidence Mentioning defendant’s good character in opening statement is not offering evidence Including claims of defendant’s good character in opening statement when you do not intend to offer such evidence is improper Including claims of defendant’s good character in opening statement when you do not intend to offer such evidence is improper But, it should not “open the door” to bad character evidence from the government But, it should not “open the door” to bad character evidence from the government But see, US v Inserra, 34 F.3d 83 (2d Cir. 1994) But see, US v Inserra, 34 F.3d 83 (2d Cir. 1994)

17. Inadvertently Opening the Door Cross Examination Cross Examination Gov’t witness is actually favorable to defendant Gov’t witness is actually favorable to defendant One of two scenarios: One of two scenarios: “Blurts out” statements about defendant’s good character “Blurts out” statements about defendant’s good character Object as non-responsive Object as non-responsive Move to strike Move to strike Defense elicits statements about defendant’s good character Defense elicits statements about defendant’s good character US v. Moore, 27 F.3d 969 (4 th Cir. 1994); US v. Grady, 665 F.2d 831 (8 th Cir. 1981) US v. Moore, 27 F.3d 969 (4 th Cir. 1994); US v. Grady, 665 F.2d 831 (8 th Cir. 1981)

18. Inadvertently Opening the Door Defendant’s Direct Defendant’s Direct Defendant can inject his character by: Defendant can inject his character by: Bolstering his baby-sitting alibi by claiming he was “deeply devoted to his family and that he never left the child alone.” US v. Dahlin, 734 F.2d 393 (8 th Cir. 1984) Bolstering his baby-sitting alibi by claiming he was “deeply devoted to his family and that he never left the child alone.” US v. Dahlin, 734 F.2d 393 (8 th Cir. 1984) Denying he was “into the cocaine thing.” US v. Gaertner, 705 F.2d 210 (7 th Cir. 1983) Denying he was “into the cocaine thing.” US v. Gaertner, 705 F.2d 210 (7 th Cir. 1983) Testifying to his career, personal history, family & business ties, medical problems, personal philosophy and civil contributions to negate criminal intent. US v. Adamson, 665 F.2d 649 (5 th Cir. 1982) Testifying to his career, personal history, family & business ties, medical problems, personal philosophy and civil contributions to negate criminal intent. US v. Adamson, 665 F.2d 649 (5 th Cir. 1982) Claiming he was “fanatic anti-drug individual.” US v. Meachem, 799 F.2d 751 (Table), 1986 WL 17397 (4 th Cir. 1986) Claiming he was “fanatic anti-drug individual.” US v. Meachem, 799 F.2d 751 (Table), 1986 WL 17397 (4 th Cir. 1986)

19. Inadvertently Opening the Door Other Defense Witnesses Other Defense Witnesses Intentionally elicit character trait on direct Intentionally elicit character trait on direct Opens door Opens door Gov’t can rebut Gov’t can rebut “Blurt out” good character testimony “Blurt out” good character testimony Object as non-responsive Object as non-responsive Move to strike Move to strike