Evidence Outline

§ 404: Evidence of a person’s character is

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§ 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.

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