F: Case to determine whether murder was premeditated.

Zackowitz R: Character is never an issue in criminal prosecution unless the defendant chooses to make it one. Evidence of a particular character trait may not be admitted to show that a person acted in conformity with that trait. F: A switchman, careless and drunk, and did not close a switch and motioned a passenger train that the track was all right, causing an accident. Was it proper to allow evidence of the switchman's intemperate habits in the past? Cleghorn Evidence of a person's character is not admissible to prove that the person acted in conformity with that character on a given occasion. Berryhill R: Yes, not to show that the switchman was negligent here (that was proven), but to show that his habits were known to the company making them liable as well. F: During the course of the custody proceeding, the petitioner asked the respondent if he had ever killed anyone. R: If character or reputation becomes a matter in issue in a civil suit, evidence with reference to such a party's reputation or character is admissible F: Secretary counterclaimed that Plaintiff had slandered him in telling certain persons that he both drank to excess and was secually promiscuous. Larson R: Since damage to reputation was at least part of D’s claim, evidence of his reputation of past misdeeds was admissible both in establishing truth and in mitigating damages. pertinent character evidence offered by an accused, or by the prosecution to rebut the same, FRE 404(a)(1): Character of Accused Criminal case The Criminal Defendant’s Good Character a. murder D could suggest he is really peaceful. b. BUT, then prosecutor may rebut with evidence of bad character.

3 Exceptions

FRE 404(a)(2): Character of Alleged Victim

Criminal case

evidence of bad character of the victim offered by the accused, or by the prosecution to rebut the same, The Victim’s Bad Character: the First aggressor

a. prosecution can rebut with similar evidence. b. not in CEC.

FRE 404(a)(3): Character of Witness

Evidence of the character of a witness as provided in FRE 607, 608, and 609.

F: Defendant was convicted of bribing a federal revenue agent. Prosecution impeached the witness' testimony asking "Did you ever hear that on October 11th 1920 the defendant Solomon Michelson, was arrested for receiving stolen goods?" Michelson R: Asking character witnesses on cross-examination whether witnesses had heard that defendant had previously been arrested for receiving stolen goods was not objectionable because form of inquiry invited hearsay.

Rule 405

FRE 405(a) Reputation or opinion Roldan

F: Witness said D is not kind of person who would bother anyone. Prosecutor ask witness if aware that D was convicted of 1st degree murder. R: OK by asking about D’s social habits, D’s counsel had put character in issue, so OK to ask about prior acts. F: Witness testified that D is honest, trustworthy person Pro asked witness did you know D’s husband, with her knowledge, filed false income tax returns? R: No “did you know” type impeachment questions. In cases in which character or a trait of character of a person is an essential of a charge


FRE 405(b) Specific instances of conduct Setien

F: D convicted of conspiracy for importing cocaine. Witness testified, outside of presence of jury, that he was friends with D, and offered to get him into smuggling business, but that he refused. R: Inadmissible. evidence of prior good conduct is not admissible to negate criminal intent. Testimony of prior good acts inadmissible.

F: Possession of other stolen property admissible to prove intent to keep silver dollar. Intent Beechum R: Evidence of extrinsic offenses should not be admitted solely to demonstrate the D’s bad character. But if to prove intent, OK, so long as probative value outweighs prejudicial value. Prof. E. indicated that this case is probably used to prove the defendant's character. Therefore, inadmissible.



F: Prosecutor introduce personal use of marijuana and cocaine to prove motive for drug trafficking, not bad character.



F: Charged with stealing treasury checks; Introduce prior trespass behind YMCA desk admissible to prove access and opportunity to steal checks.

Plan and preparation FRE 404(b) Evidence of Other Crimes, Wrongs or Acts is admissible ifor other purposes such as proof of:


R: Earlier, uncharged burglar of garage admissible to show…preparation, plan.



F: Charged with conspiracy; introduce prior involvement in a similar conspiracy admissible to show…that the Ds knowledge that driving friend and his checks was for illicit purpose.

R: Prior participation in bank robberies with same, distinctive modus operandi and disguise is admissible to establish identity. Dossey Proving Identity or Modus Operandi: R: In prosecution for armed bank robbery, trial court did not err in admitting evidence of another bank robbery in which robber's modus operandi and disguise were similar to crime charged, and which was close in time to crime charged.

Modus operandi

someone's habits or manner of working, the method of operating or functioning.


F: Sold drugs to officer; later wired-tapped; conversations from wiretap admissible? Later drug sales inadmissible to prove intent and identity. Conversation indicated that defendant sold cocaine on wholesale level, and defendant was charged with selling cocaine to undercover police officer on street. Inadmissible

The risk of prejudice to the D is manifest, and often the proof is excludable under FRE 403 even though it is marginally relevant on some point. Balancing Test Huddleston

R:The evidence of the other crime (D's knowing purchase of stolen TV sets from X) was found to have been properly admitted on the issue of whether D knew that blank tapes he bought from X were stolen-the low price of the televisions, the large quantity D had for sale, and D's inability to produce a bill of sale, coupled with D's involvement in still other purchases of stolen goods from X, were enough to allow a reasonable jury to conclude that D knew the TV sets were stolen, and therefore, enough to let the jury consider this other-crimes evidence. R: The Supreme Court held that all that FRE 404(b) requires is that the evidence of the other crime be strong enough that the jury could "reasonably find" that the other crime was committed by D.

A person's habit is admissible to show that he followed his babit on a particular occasion. General Specificity Loughan Three factors Regularity Burchett Degree of reflection Difference between Habbit and character (a) Evidence offered to prove that any alleged victim engaged in other sexual behavior and to prove any alleged victim's sexual predisposition is not admissible. (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; R:Proof of prosecutrix' general reputation of unchastity and habitual sexual intercourse with others than accused held admissible on issue in rape trial as to whether her physical condition was due to rape or drunken fight in which she was aggressor. R: D's state of mind that the victim was a "skeezer" is not admissible because reputation and opinion evidence about a victim's past sexual behavior are never admissible. R: P's drinking habit is admissible to the evidence under Rule 406 because Plaintiff's drinking habit contributes his injuries while employed as a tire mechanic by D. R: evidence that defendant smoked marijuana on a daily basis was not admissible as habit evidence to prove that he smoked marijuana on day of fatal collision.Probative value of such evidence was substantially outweighed by danger of undue prejudice, confusion of issues, and considerations of undue delay.

(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 (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (b) Exception


Character of the victim

FRE 412


(C) evidence the exclusion of which would violate the constitutional rights of the defendant. * * * Olden

F: In the present case at bar, the question is whether the trial court erred to refuse to allow the petitioner, who was convicted for kidnapping, rape and forcible sodomy, to impeach the victim's testimony by introducing evidence supporting a motive to lie deprived him of his Sixth Amendment right to confront witnesses against him. The US supreme court held that the restriction on petitioner's right to confrontation is beyond a reasonable doubt not harmless. R: Petition for writ of certiorari was filed following state court affirmance of conviction on charge of sodomy. The Supreme Court held that trial court's refusal to permit petitioner to cross-examine complainant in regard to her cohabitation with boyfriend violated petitioner's Sixth Amendment rights.

FRE 413(a) Past sexual assaults admissible R: When the defendant's previous child molestation conduct is substantially similar to the alleged child molestation conduct, unfair prejudice defense would not work.

Character of the defendant

FRE 414(a) Past child molestation admissible


FRE 415(a) In a civil suit, P can introduce D's past crimes of sexual assault or child molestation

Chapter 4. Character Evidence.mmap - 2010-06-03 - Mindjet