Character Evidence

1. Character Evidence
   1. Steps
      1. Determine the form of character evidence
      2. Determine the type of case (civil or criminal)
      3. Determine the purpose for which the evidence is being offered
   2. Forms
      1. Reputation
         1. Always community
      2. Opinion
         1. Personal opinion
      3. Specific Instances of Conduct (Specific Acts)
   3. Character Evidence in a Civil Case[FRE404(a)(1)]
      1. Character evidence is inadmissible to prove conduct in conformity therewith on a particular occasion
         1. Ex. In a negligence action, evidence that the Δ was a careful person is inadmissible
         2. Ex. In a breach of warranty action, evidence that the seller was an honest man is inadmissible
      2. Exceptions
         1. Where character is an essential element of a claim, defense, or cause of action, character evidence will be admitted
            1. Defamation cases
            2. Child custody cases
         2. Where knowledge of the character of another is an issue
            1. Self-defense
            2. Negligent entrustment
               1. Includes hiring, selection
      3. Example (negligent entrustment)
         1. Paul is injured when Wanda collided while driving Doris’s car. Paul is suing Doris for negligent entrustment.
         2. Paul is offering evidence that Doris knew that Wanda had had three previous accidents that year- admissible?
            1. It is a civil case and character is an issue and it is dealing with a specific act
            2. Would be admissible as a proper form of character evidence
         3. Doris is offering testimony of husband, that in his opinion, Doris always inquired as to a person’s past record before loaning her car- admissible?
            1. Opinion testimony and character is an issue
            2. However, it is inadmissible because it is not Doris’s character in issue, it is Wanda’s in issue and therefore husband’s testimony is inadmissible
      4. Where Character Evidence is Admissible[FRE 405]
         1. (Where character is an issue or knowledge of character is an issue) All three forms of character evidence are available as proof of character: reputation, opinion, and specific acts
         2. Re: Specific Acts
            1. Example: Paul is suing Dan for defamation claiming that Dan called him a thief falsely and Paul testifies he is not a thief. Dan introduces testimony of Wilma that Π committed three larcenies in past year- admissible?
               1. Committing larceny is a specific act, it is a civil case where character is an issue- the specific act does come in under FRE 405(b)
         3. Note: FRE 405 deals with character evidence of parties, not impeachment of witnesses
   4. Character Evidence in a Criminal Case
      1. Δ may use circumstantial character evidence in three ways:
         1. “Opening the Door” Rule
         2. Bad Character of the victim
         3. Rape cases
      2. “Opening the Door” Rule[FRE 404(a)(1)]
         1. A Δ may offer evidence of his good character by reputation or opinion evidence (not specific acts) to prove his innocence and the prosecution may so rebut
         2. Ex. In a murder case. Δ offers testimony by W saying she has been his neighbor and he is a good man- admissible?
            1. No- being a good man does not bear on innocence in a charge of murder
            2. However, if W says he is a kind and gentle person, this testimony would be admissible as a proper way for the Δ to open the door
         3. Focus on the trait being offered
            1. That trait must go to proving innocence on that particular charge
         4. Rebuttal by Prosecution
            1. Also limited to reputation and opinion evidence only
               1. Ex. Prosecution offers a neighbor’s testimony and that she has known the Δ for 14 years and has a reputation for a violent temper- admissible?
                  1. yes- proper form of rebuttal
         5. What is the purpose for which the evidence is being offered?
            1. Character v. Credibility
            2. Ex. Δ offers testimony of neighbor in robbery case that he is an honest man- admissible. Prosecution then asks the same W if he has heard that Δ committed three burglaries in last year- admissible?
               1. Yes- it is admissible even though it is a specific act
               2. This question is asked not to attack Δ’s character, but to challenge the credibility of the W
      3. Bad Character of the Victim[FRE 404(a)(2)]
         1. A Δ may use all three forms of character evidence to prove the bad character of the victim and the prosecution may so rebut
         2. Ex. In a murder case where Δ claims self-defense, she may introduce evidence of the victim as a violent person to show he was the aggressor. Prosecution may rebut with evidence of non-violence.
      4. Rape Cases[FRE 412]
         1. In rape cases, reputation and opinion evidence in inadmissible (unlike common law rule), but specific acts of sexual behavior by the victim are admissible in two instances:
            1. Behavior with other persons which would explain sign of rape
               1. Ex. sexual intercourse with other men if it is used to show the  Δ was not the source of sperm found in the victim after alleged rape
            2. Past behavior with the Δ, but not with other men, which tend to show consent
   5. MIMIC Rule[FRE 404(b)]
      1. In general, circumstantial evidence may offered in a criminal case by the prosecution and it is offered in rebuttal, not in the prosecution’s case in chief
         1. The specific trait which is to be proved must be in issue
      2. Rule: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that he acted in conformity therewith
         1. However, it may be admissible for other purposes, such as proof of MIMIC:
            1. M= Motive
            2. I= Intent
            3. M= Absence of mistake
            4. I= Identity
            5. C=Common plan or scheme
      3. Ex. in a burglary case, prosecution offers testimony that Δ needed money to defend himself against three other charges of burglary- admissible?
         1. No- highly prejudicial, the jury will look as such evidence and guess that since he committed others, he did this burglary as well
      4. Note: When dealing with MIMIC evidence, there must always be a balance of the probative value against the prejudicial effect
      5. Mimic evidence is never admissible to prove criminal disposition or propensity to commit a crime
      6. Ex. In a murder case, Δ claims victim was his friend and he had no reason to kill. In rebuttal, prosecution may introduce evidence that both Δ and victim took part in a bank robbery and the victim hid all the money- would be admissible
   6. Habit Evidence[FRE 406]
      1. Character v. Habit
         1. Character is a generalized description of a person’s disposition
         2. Habit is circumstantial evidence if a person’s regular response to a repeated specific situation
      2. Rule: Evidence of the habit of a person or the routine practice of an organization whether, corroborated or not, and regardless of the presence of eyewitnesses is relevant t prove conduct in conformity of the habit or routine practice
         1. Ex. evidence of the routine by which the company answers phone orders and mails them out would be admissible as to the routine of business practice
         2. Ex. passenger is suing driver. Driver’s W testifies that passenger was not wearing her seat belt. Passenger calls W that she drives to work every day with passenger and that she wears her seat belt- admissible?
            1. Yes- regardless of the presence of eyewitnesses
      3. May be proved by opinion testimony or specific instance of conduct
2. Legal Relevancy
   1. Public policy considerations to exclude otherwise relevant evidence
      1. Involves character evidence
   2. [FRE 403] Evidence may be excluded if its probative value is substantially outweighed by the danger of:
      1. Unfair prejudice———-
      2. Confusion of the issues    subject of appellate review
      3. Misleading the jury——
      4. Undue delay
      5. Waste of time
      6. Needless presentation of cumulative evidence
   3. Balancing Test[FRE 403]
      1. Used to determine whether the probative value outweighs prejudicial effect

 Legal Relevancy FRE 407-411

1. Subsequent Remedial Measures[FRE 407]
   1. Evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct in connection with the events
   2. Exceptions where remedial measures would be admissible:
      1. To prove ownership or control
      2. To show feasibility of precautions if controverted
      3. For impeachment
   3. Examples
      1. Evidence that Δ put new brakes in truck after accident caused by faulty brakes is inadmissible to prove negligence.
         1. Compare: Evidence that Δ cut down a rotted tree after he fell on Π is admissible to show ownership and control if Δ first claimed that the tree was on city property, but it was on Δ’s property.
      2. In a products liability action against a tractor manufacturer evidence by the Π that the Δ corporation changed the design after Π was injured- admissible?
         1. Not admissible under Federal Rules, however in many state courts evidence of subsequent remedial measures are admissible in products liability actions
   4. Public policy: Encourage persons to make products safe and to make repairs without fear that such evidence will later be used against them as retaliation in court
2. Offers to Settle[FRE 408]
   1. An offer to settle a claim which is disputed is inadmissible to prove liability for the claim or its amount
   2. Public policy: Encourage out of court settlement
   3. Example: Π is suing Δ after car accident. Δ offers money to settle this matter- admissible?
      1. No, it is an offer to settle
   4. Exceptions:
      1. To prove bias or prejudice of a witness
      2. To controvert a contention of undue delay by one of the parties
      3. To prove that a party attempted to obstruct a criminal investigation
   5. Example: Evidence by the Π that Δ’s expert witness received payment to testify against Π as an offer to settle the expert’s own claim against Δ may be admissible to show bias.
   6. Re: Statements made in Connection with Offers to Settle
      1. Are inadmissible
      2. Example: In a negligence action following an accident, Δ walks over and says sorry it is his fault and offers to settle- can this be an admission and severed from offer to settle?
         1. No, there is no severance- inadmissible
3. Offers to Pay Medical Bills[FRE 409]
   1. An offer to pay medical bills is inadmissible to prove liability for an injury
   2. Re: Statement made in Connection to Pay Medical Bills
      1. There is severance here
      2. Example: Δ walks over to Π and says it is his fault and will pay medical bills (not an offer to settle)- admissible?
         1. Yes, there is severance under 409
4. Offers to Plead Guilty[FRE 410]
   1. Offers to plead guilty, withdrawn guilty pleas, and pleas of no lo contendere are inadmissible against the individual who made the plea
   2. Public Policy: Encourage persons to make such pleas
   3. Exceptions:
      1. Prosecution for perjury
      2. For purposes of impeachment
   4. Distinguish-
      1. if there is an actual guilty plea which is not withdrawn is admissible as an admission, evidence of a final judgment entered after a guilty plea following any felony conviction is admissible under a hearsay exception
5. Liability Insurance[FRE 411]
   1. Evidence that a person was or was not insured at the time of the accident is inadmissible to prove negligence
   2. Exceptions:
      1. Agency
      2. Ownership or control
      3. Bias or prejudice
   3. Example: where a Δ claims that a truck drive involved in an accident was an independent contractor, not an employee, evidence that the Δ took out liability on that truck would be admissible under the exception to show ownership and control.
   4. Re: Statement made in Connection with Ownership of Liability Insurance
      1. Are inadmissible
      2. No severance
      3. Example: Δ walks over to Π and says he ran the red and that his insurance will pay for it- is the admission admissible?
         1. No, made in connection with liability insurance, no severance