FRE 404(a)(3)Character of WitnessAllowed for ImpeachmentCharacter evidence that would otherwise be prohibited due to the general bar against propensity evidence is admissible for impeachment purposesunder Rules
607, 608 and 609
.FRE 404(b)Character Evidence: other crimes, wrongs or actsThe general bar against propensity evidence excludes evidence when the
rationale for admission is to support inferences about a person’scharacter and the person’s having acted in conformity with that character. Rule 404(b) confirms that information about a person’s past conduct thatwould naturally lead to inferences about the person’s character may be introduced for different purposes, such as proving intent, motive, plan or preparation, special knowledge, or identity.
US v. Cunningham
(Demerol addiction could be used to show
for stealing it. Court allowedevidence of addiction but not actual prior conviction);
United States v. Carillo
exception – prior sales involving balloon drugsales ok to show MO)FRE 405(a)Proving Character:Reputation or OpinionCharacter evidence requires a two-step analysis. The first step, treated in Rule 404, is determining
any information related to character isallowed to be introduced. The second step, treated in this rule, is determining
that character information may be proved. In
situationwhere character information is admissible, it may be shown with opinion or reputation testimony. Information about specific past acts relevant toestablishing a person’s character may be asked about on
.FRE 405(b)Proving Character: SpecificInstancesIn cases where
character is in issue
, that is character is an essential element of the crime, proof may also be made by specific instances of the person’s conduct. (Or on cross examination under 405(a)).FRE 406Habit; Routine PracticeProof that a person has a habit is admissible, since it is different from proof that a person has a particular character trait. A habit of custom is aroutine way of doing something that a person or organization accomplishes in a uniform way, free from individual thought or judgement about howto do it.FRE 407Subsequent RemedialMeasuresEvidence that a D changed or repaired something after it was allegedly involved in an injury is
to establish D’s negligence or a product’s defectiveness. We don’t want to discourage reevaluation of risks in light of injury. If there is a rationale for proving the change toestablish something other than negligence or product defect, proof of the change may be admitted.FRE 408Compromise and Offers toCompromiseEvidence about a settlement or statements made in settlement negotiations may not be admitted with respect to the validity of the claim involved inthe settlement or settlement negotiations. The evidence may, however, be admitted on any other rationale such as proving bias, prejudice of awitness, ownership, impeachment.
Davidson v. Prince
(statement must be part of negotiations to qualify)FRE 409Payment of MedicalExpensesInformation about medical payments and promises of medical payments is not admissible to show liability for the injury. Statements made while paying of promising can be admitted, in contrast to the Rule 408 treatment of statements made in settlement negotiations.FRE 410Inadmissibility of PleasCertain pleas and plea bargaining statements are inadmissible except to provide a full context for partial revelation of plea bargaining statements or where a case involves perjury.FRE 411Liability InsuranceEvidence of insurance may not be admitted to show liability for negligence or other wrongful action, but other rationales such as proof of agency,ownership, control, bias or prejudice, can provide a basis for admission.FRE 412(a), (b)Sex Offense Cases:Relevance of AllegedVictim’s Past SexualBehavior This is contrary to typical character evidence rule. This “rape shield” provision applies to all types of sexual misconduct cases and says evidenceabout a person’s past sexual conduct and sexual traits may not be admitted to show how he or she acted in a situation that is the basis for a sexoffense charge. In
, the general prohibition does not apply to evidence that (b)(1)(A) supports a claim that someone other than D wasthe source of the semen, B) occurred with the D and supports a claim of consent, C) is so crucial that exclusion would be unconstitutional. In a civilcase, the general prohibition does not apply if the probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
State v. Cassidy
(Conn. – prior sex with D okay but sex with other partner where she also freaked out was not ok)FRE 413Evidence of Similar Crimesin Sexual Assault CasesEvidence of a D’s past sexual offense is admissible to support an inference that his or her commission of such an act in the past increases thelikelihood that he or she committed the charged offense. Because evidence of past sexual offenses is so prejudicial, a notice provision requires thatthe D have warning prior to its introduction.FRE 414Evidence of Similar Crimesin Child MolestationThis is parallel to Rule 413 except that it deals with child molestation cases rather than “sexual assault” cases.FRE 415Evidence of Similar Acts inCivil Cases ConcerningSexual Assault or ChildMolestationThis allows character evidence to be introduced in a civil case as relevant to the issue of someone’s out-of=court conduct. It allows introduction of evidence of a party’s past sexual offsens or child molestation to support an inference that his or her commission of such an act in the past increasesthe likelihood that he or she committed the conduct charged in the civil suit.
ARTICLE V: PRIVILEGES
FRE 501PrivilegesNo specific privilege provisions have been adopted as part of the federal rules, although detailed provisions have been proposed by the drafters.Privilege law, therefore, is open to traditional common law development. In civil cases, state privilege law governs where an issue is governed bystate law.