Evidence Outline


§ 404: Evidence of a person’s character is



Download 295 Kb.
Page10/78
Date11.05.2021
Size295 Kb.
1   ...   6   7   8   9   10   11   12   13   ...   78
§ 404: Evidence of a person’s character is not admissible to show conformity therewith. Exceptions:

  • (1) accused can bring up own character in defense (criminal cases only)

    • BUT: then “opens the door” for P to rebut on that trait.

  • (2) accused can attack character of victim (criminal cases only)

  • (3) character used for impeachment treated under separate rules § 607–09.

  • Other exceptions:

    • a) when character “in issue”

    • b) habit is admissible under 406, see infra.

    • c) when proponent can find a “not for character” purpose.

      • “Not for character” purposes:

        • eg, state of mind. See list under prior bad acts

  • rationale of rule: though probative, looking to prior acts/ character of D is prejudicial. Turns trial into popularity contest of whether jury thinks D is a good person or not.

    • exceptions 404(1) and 404(2) justified as “rules of mercy”

  • § 405(a): When character is admissible, can only be proven through opinion and reputation.

    • But, on cross, specific acts allowed.

    • and (b) if character in issue, then specific acts can be used.

  • Rmks:

    • 1) “character in issue” = character trait is material, consequential fact in determining rights and liabilities of parties. A essential element of claim or defense.

      • eg, defamation case. If D called P a liar, P needs to show he is not a liar to prevail (as truth is a defense). Character in issue, and P can use specific facts.

      • eg2, negligent hiring. To show that D should not have hired a person, will be necessary to prove D should have known that had bad character (eg, was a sex criminal), and so will need to prove this character trait.

      • eg3, child custody. Being a good parent in issue.

    • 2) in civil cases: no circumstantial use of character evidence. Only “in issue” allowed.

    • 3) in criminal cases: govt can’t use character evidence unless D has opened the door.

    • 4) Accused can only bring up character trait of his or victim if “pertinent”

    • 5) Scope of “opening the door”

      • if D brings up own trait, P can only respond with evidence to disprove that trait.

      • but if D bring up trait of the victim, and expended principle applies: P can retort directly, and bring up same trait of D.

      • sometimes even statements like “I’m devoted to my family” or “he couldn’t have done it’ will be construed so as to open the door.

    • 6) “opinion testimony and reputation”

      • i.e., you call a witness to say “I known him for x years, and he’s an honest person. He has a reputation for honesty” but can’t talk about anything he’s done.

      • But, on cross, can probe specific acts: “So you say he’s honest. Did you know that he [did x dishonest thing]?”

    • 7) Since D can only use opinion and reputation, and it opens a lot of unfavorable doors, most D rarely invoke their rule of mercy.



    Directory: sites -> default -> files -> upload documents
    upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
    upload documents -> Federalism – The Structure of Government
    upload documents -> General Info About Property law
    upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
    upload documents -> Property with Professor Vicki Been
    upload documents -> Property Outline – Professor Upham, Spring 2000
    upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
    upload documents -> Complex federal investigations
    upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
    upload documents -> Pricing v. Sanctions


    Share with your friends:
  • 1   ...   6   7   8   9   10   11   12   13   ...   78




    The database is protected by copyright ©essaydocs.org 2020
    send message

        Main page