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Character evidence can come in 3 different mediums, but not all of these mediums are available in all circumstances. These mediums are: 1. 2. 3. B. Reputation Opinion Acts
General Exclusionary Rule (GER) -- Rule 404(a) says that character evidence is inadmissible for the purpose of proving a person acted in conformity with that character on the occasion in question. 3 primary ways to circumvent the GER 1. Offer the character evidence for the purpose of showing conformity under the exceptions to the GER. These exceptions are: a. b. c. 404(a)(1) – Character of accused -- aka, “Mercy rule.” 404(a)(2) – Character of victim 404(a)(3) – Character evidence for purpose of impeachment – i.e., you can use character evidence to suggest that the witness on the stand does not tell the truth. We will cover this in detail later. 413, 414, 415 – Sexual offense cases 406 – Habit (evidence experts are divided as to whether habit evidence is true character evidence. I have listed habit here just for ease of reference)
Offer the evidence for a purpose other than to show conformity. Obviously, this purpose must be material, relevant, and pass Rule 403. Rule 405(b) cases – This is the rare case when character is an essential element in the case and must be proven by one of the parties.
GER exceptions -- using character evidence for conformity purposes A. Rule 404(a)(1) -- Character of accused (“Mercy Rule”)
During the cross-examination. For a “reputation” character witness. In other words. the prosecution can ask the witness whether the witness has heard or is aware of specific acts of the defendant inconsistent with the testimony the character witness just gave. 2 2. a criminal defendant cannot use his past good acts as proof that he acted in conformity with that good character on the occasion in question. b.” After the defense character witness is finished with his direct testimony. f. Rule – Rule 404(a)(1) says a criminal defendant (not applicable in civil cases) can offer his good character as substantive evidence that he did not commit the crime. the prosecution can cross examine the witness. the mercy rule can be activated with reputation and opinion evidence. the defense lawyer must lay the foundation to show that the witness has sufficient enough contacts with the defendant to have formed an opinion about the defendant. and that the accused has enough contacts to have formed a reputation in that community. Accordingly.1. . can inject character into the case by activating the mercy rule under Rule 404(a)(1). and he acted consistent with this good character on the occasion in question. 3. Unless it is a 405(b) case where character is an essential element of the case from the outset. Mercy Rule procedure a. this is substantive evidence. the character of a criminal defendant is NOT at issue at the outset of the case. Again. and the jury can use it to infer that the defendant acted in conformity with that character on the occasion in question and did not commit the crime. The mercy rule can also be activated by “opening the door. or the witnesses’ opinion about the defendant for a pertinent trait. d. however. A pertinent trait is one that is relevant to the crime. The standard way to activate the mercy rule is to call character witnesses to testify about the defendant’s reputation in the community for a pertinent trait. The lawyer then asks the witness for his opinion about the defendant with regard to the pertinent trait. c. For an “opinion” character witness. He must use reputation and opinion evidence. e. he has good character. The lawyer then asks the witness to describe the defendant’s general reputation in that community for the pertinent trait. the defense lawyer must lay the foundation to show that the witness has sufficient contacts with a particular community. Mediums – Under the federal rules. A criminal defendant.
The acts must be relevant to the character trait at issue.e. The prosecution must have a good faith basis that the acts affected the defendant’s reputation in the community (or. Alabama Mercy Rule – There are currently 2 differences in the Alabama rule: a. These questions are to impeach the character witness.(See 405(a). this rule can be activated with reputation and opinion evidence.. The same rules for the defendant’s character witnesses apply. etc.. and the victim acted in conformity with that violent character on the occasion in question (i. This rule will typically only be utilized in cases such as assault. Rule 404(a)(2) – Character of victim 1. Rule – Rule 404(a)(2) says a criminal defendant (generally not applicable in federal civil cases) can offer character evidence of the victim as substantive evidence that the victim acted in conformity with the victim’s character on the occasion in question. it is not necessary. b. and are not considered substantive evidence.e. 3 . but the prosecution’s witnesses would give negative testimony about the pertinent trait. if an “opinion” character witness. last sentence). 3. Alabama does not allow opinion evidence for the mercy rule.e. Mediums – Under both Alabama and Federal rules. i. the victim started the fight or did something to make the accused fear for his safety). he can’t just make things up). 4. (2) (3) g. that the acts would reasonably affect a person’s opinion for the trait). B. The prosecution can rebut with its own character witnesses in its rebuttal case. The criminal defendant will often use this rule to essentially say that the victim is a violent person. The acts the prosecution asks about must meet the following elements: (1) The prosecution must have a good faith basis that the acts actually occurred (i... Accordingly. where the defendant claims self defense. the criminal defendant cannot use the past bad acts of the victim to show that the victim acted in conformity what that character on the occasion in question. Three major parts to Federal Rule 404(a)(2): 2. Alabama will allow evidence about an accused’s general reputation. while attaching a pertinent trait is allowed. murder.
aggressive. This is all substantive evidence. “Have you heard” or “did you know” that the victim participates in non-violent peace marches on a weekly basis?”). and the defendant offers factual testimony that the victim was the first aggressor. and the jury can use the evidence to infer that the person acted in conformity with that character on the occasion in question. etc. Defendant calls reputation or opinion character witnesses.e. the prosecution can rebut by calling character witnesses who will testify that the defendant is violent. the prosecution can impeach the character witness by asking if the witness is aware of specific acts of the victim inconsistent with the testimony the witness just gave (i. The prosecution can also rebut with its own character witnesses who will testify to the peaceful character of the victim. Alabama has not yet passed the 2000 amendment. Rule 404(a)(2) applies in civil cases. the prosecution now has two ways to rebut that evidence: (1) evidence that the victim is peaceful (and acted peaceful on the occasion in question. Homicide cases – if the victim is dead.e. If the defendant injects the negative character of the victim under Rule 404(a)(2) (i. In Alabama. c.. In any criminal case. and the jury can use this as substantive evidence that the victim acted in conformity with his peaceful character on the occasion in question.. The same foundation rules apply as to the defendant. This is substantive evidence that the victim was aggressive and/or violent on the occasion in question. the prosecution can rebut this evidence by calling character witnesses to say that the victim is a peaceful person. b. if the defendant calls character witnesses to testify that the victim is violent. it applies just like Rule 404(a)(1). and after laying the same foundations in 404(a)(1). the witness will testify that the victim has a bad reputation for violence. etc. 4. Alabama Rule 404(a)(2) – Differences with federal rule: a.. (or if it is an opinion witness. etc.a. On cross-examination. b.). Federal 2000 amendment – adds one component to the above paragraph. (2) evidence that the defendant is violent (and acted violent on the occasion in question). 4 . So. aggressiveness. that the victim is violent). and the testimony of these witnesses is limited to reputation or opinion evidence. aggressive. that the witnesses’ opinion is that the victim is violent. just like Rule 404(a)(1). The same foundational rules from above apply.
by the preponderance of the evidence.. it must be the type of activity that does not require a lot of complex thought. The prior sexual assaults and instances of child molestation do not need to be convictions. Defendant’s knowledge of the victim’s character is not required under this rule – i. in which the defendant has to know of the evidence being offered. 3. Disclosures – the party shall disclose the evidence (including statements or a summary of the expected testimony) at least 15 days before trial or later if good cause is shown.5. Rule – evidence of a habit of a person or organization is generally admissible to prove that the person or organization acted in conformity with that habit on the occasion in question. Rule – Rule 404(a)(3) says that certain impeachment evidence can be used to show that the witness acted in conformity with his character to lie on the occasion in question. The same standard for 404(b) applies. C. D. Evidence of prior sexual assaults or child molestation should be admissible (subject to Rule 403). and is almost “semi-automatic. 2. evidence of a defendant’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered for any matter that is relevant. E. it must satisfy two elements. First. and in civil cases regarding the same (415). 414. Rule -. and 415 – Sexual predator cases (Federal court only) 1. when the government (or plaintiff) presents sufficient evidence to support a finding.e. Rule 406 – Habit 1. the jury can use certain character evidence of the witness to infer that the witness is not telling the truth on the witness stand. Contrast this with offering “state of mind” (non-conformity) evidence. 2. For something to be a habit.in prosecutions for sexual assault (413) and child molestation (414). that the Defendant committed the prior act. In other words. the person or organization generally must have performed the act multiple times. the defendant can use Rule 404(a)(2) whether he knew of the victim’s violent character or not. 5 . Rules 413. Rule 404(a)(3) – Impeachment 1.” Second.
” of course. The “other purpose. 3. Very few cases where this applies. Rule 404(b) burden – the offering party must lay the foundation for the jury to reasonably conclude that the other act occurred. opinion.III. 2. Rule 405(b) – when character is an essential element of the crime or cause of action. B. and that the defendant was the actor. Rule 404(b) applies in civil and criminal cases. plan or scheme. knowledge. must be material. or acts can be introduced. depending on the purpose for which the other acts are offered. intent. 6 . 1. Rule 404(a)/405(a) – this would allow a party to introduce reputation and opinion evidence for non-conformity purposes. most notably: 1. relevant. IV. Rule 404(b) – evidence of other acts is admissible for purposes other than conformity such as motive. character evidence in the form of reputation. and satisfy rule 403. GER exceptions – using character for non-conformity purposes A. GER exceptions – character as an essential element A. or the defense. Negligent entrustment Entrapment Defamation. where Defendant pleads truth. 2. It is possible to introduce other acts that occurred subsequent to the act in question. 3. etc. B.
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