parent nodes: authentication | evidence | nonspecific impeachment | relevance
character
Certain types of character evidence are inadmissable.
Character evidence
The main questions for proposing character evidence are:
- what is the purpose of the evidence?
- is the evidence sufficient so that a reasonable jury could find the character evidence to be true?
- In what form would the evidence be valuable for that purpose?
- the generic 403 question — does probative value outweigh the risk of prejudice?
(a) Character evidence generally
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution;
(2) Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
(3) Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.
Rule 404(a)
(a) Reputation or opinion.
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct.
In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.
Rule 405
Note that character is inadmissible completely in civil trials, but that prior bad act evidence can be admissible in civil trials under 404(b). Compare also the proper use under 404(a)(3) of prior bad acts in impeachment under Rule 608(a) and 608(b).
And note that Rule 405 allows lay opinion testimony as to a person's reputation, and even allows cross-examination about specific instances of that person's conduct, or direct questioning if character is an "essential element" of a claim or defense.
(b) Other crimes, wrongs, or acts
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Rule 404(b)*
Note that the list following "other purposes" is not exclusive, so that purposes such as wherewithal may be included. Note also that plan and design are often used in a way indistinguishable from propensity evidence.
[Huddleston v US] (prosecution need not prove prior bad acts admitted under 404(b) by a preponderance of the evidence, given Congressional intent to allow for admissibility and the other limits on admissibility such as rule 403)
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Rule 406
Habit "denotes one's regular response to a repeated situation" or a "regular practice of meeting a particular kind of situation with a certain type of conduct," as opposed to character, which is a "generalized description of one's disposition in respect to a general trait." Habit can also be characterized relative to "propensity" or "character" evidence by its lack of moral overtones.
Note also that the routine practice of organizations may be admitted as habit evidence, since organizations run on regularized and monitored practices. See also the availability-independent hearsay use admitting evidence of an organization's regular practices. However, there may be a problem with such evidence if a particular policy was violated or ignored on a particular occasion. Note also that organizational routine may be admissible to prove the presence of terms in an agreement. [Amoco Production v US] (admitting evidence of "routine practice" as proof of term in lost deed).
Habit may also be used to show the standard of care necessary in a negligence action. [Avena v Clauss and Co] (custom of moving bales by inserting longshoremen's hooks under the bands to move packages admissible to prove intended use, hence dangerous condition). Note that custom is not by itself a defense to negligence. [TJ Hooper]; but see Rodi Yachts v National Marine (evidence of usual market behavior is relevant to the proper standard of care in negligent behavior, especially where the custom has been written as a contractual term).
[alias: habit]
(a) Evidence generally inadmissible.
The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisioans (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.
Rule 412(a)–(b)
[Olden v KY] (constitutional error to refuse to let defendant ask complainant whether she claimed rape in order to preserve relationship with boyfriend with whom she was cohabitating)