EVIDENCE OUTLINE II: CHARACTER EVIDENCE

The Propensity Box FRE404 is about blocking a single chain of inferences by excluding a step (The Propensity Box) in the inferential chain Example of Prohibited Inferential Chain: Evidence of Zackowitzs Other Weapons > To prove his vicious and dangerous character > To prove action in conformity therewith (excluded as a matter of law) > To prove he killed with premeditation Rationale for Excluding aforementioned inferential chain Jury may give excessive weight to a vicious record of crimes and allow it to bear too strongly on the present charge Jury might use the character evidence to justify punishing a D of bad character Might use the evidence to punish for something the D is not on trial for Basic FRE404 is that you cant show character via stories of particular violent acts

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Absence of Accident
INTENT AND ABSENCE OF ACCIDENT ARE REALLY THE SAME THING UNDER 404b

Proving Absence of Accident/ The Doctrine of Chances 1. Admission of the evidence would tend to show that the likeliness of the same accident happening twice is low. Its certainly prejudicial, but it goes toward negating a defense of accident/mistake 2. Lightning Rarely Strikes Twice

This is not a fully endorsed Idea: Seems to be propensity in sheeps clothing ROTHSTEIN: If there is disparity between the small probability that an innocent person could face multiple similar criminal charges and the larger probability that a guilty person could do so, it is only because a guilty person would have the propensity to repeat the crime. If it were not for the propensity to repeat, the probability that an innocent person and a guilty person would be charged repeatedly would be identical. Hence the effort to avoid the propensity reasoning box fails.

MINNESOTA RULE OF EVIDENCE 404b

I. Differences from Federal 404b A. Standard of Proof for introducing past acts: 1. MN: Clear & Convincing evidence of past crimes, wrongs, or acts 2. FED: A reasonable jury, by a preponderance of the evidence B. The 403 Balancing Test 1. MN: only requires that the unfair prejudice outweighs the probative value to exclude evidence
2. FED: requires that the unfair prejudice substantially outweighs

the probative value to exclude evidence

404b requirement Standard of Proof for introducing past acts 403 Balancing Test MN Clear & Convincing Unfair Prejudice Outweighs probative value FRE Preponderance of the Evidence (Huddleston) Unfair Prejudice SUBSTANTIALLY outweighs probative value

Sex Assault FRE 413, 414, 415

FRE 413, 414, 415 GENERALLY Permits prosecutors and civil plaintiffs to offer evidence of the defendants other acts of sexual assault or child molestation on any matter to which it is relevant. Includes the D propensity to commit sexual assault or child molestation offenses. Creates a green line through the propensity box Reported Criticisms FRE 413-415 Permits the admission of unfairly prejudicial evidence 404b is enough The new rules are not founded on empirical evidence Mini trials would occur during trial concerning those acts admitted that were not subject to conviction Drafting problems Mandatory admission, as written Neither 403 balancing or the hearsay rules will apply because of the language Is admissible Requirements of FRE 413 D must be accused of sexual assault Evidence proffered must be evidence of the Ds commission of another offense of sexual assault Evidence must be relevant a. The evidence is relevant by the language of Old Chief: Evidence of. . . Propensity is therefore relevant. i.413 supersedes 404b ii. 413 threshold was satisfied in this case ORDER OF OPERATIONS 413 analysis first, 403 evidence second Check for unfair prejudice, but dont presume it

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Build a real record of support for the proposition that the evidence will unfairly prejudice. The right way to do 403 analysis Unfairly prejudicial because of confusion of issues arguments Lack of probativeness arguments Time issue arguments because of all the mini-trials that would go into sorting out the FRE413 elements Nullification arguments about the risk of sending a generally creepy sex offender to jail for being creepy.

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Rule 413. Evidence of Similar Crimes in Sexual Assault Cases (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) [Prosecutor must] disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or [on successful showing of good cause] at such later time as the court may allow.
(c)

This rule shall not be construed to limit the admission or consideration of evidence under any other rule. For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved-(a)any conduct proscribed by chapter 109A of title 18, United States Code; (b)contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person; (c) contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

(d)

(d)deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (e)an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4). Rule 414. Evidence of Similar Crimes in Child Molestation Cases (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved-(a) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child; (b) any conduct proscribed by chapter 110 of title 18, United States Code; (c) contact between any part of the defendant's body or an object and the genitals or anus of a child; (d)contact between the genitals or anus of the defendant and any part of the body of a child; (e)deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or (f) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5). Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is

expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

Proof of the D and the V Character

FRE404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes (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 405. Methods of Proving Character (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.

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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. May C/X about specific acts to test witnesss knowledge of Ds reputation (if the witness offered reputation evidence) or her familiarity with the defendant (if she offered opinion evidence). GENERAL RULE: evidence of a persons character is not admissible for the purpose of proving that he acted in conformance with that character. ALL COURTS ALLOW CRIMINAL D TO INTRODUCE EVIDENCE OF HIS GOOD CHARACTER FOR THE PURPOSE OF SHOWING IT UNLIKELY THAT HE COMMITTED THE CRIME FOR WHICH HE WAS CHARGED. Method of Proof 1. Only reputation/opinion are allowed, not specific facts/incidents 2. Negative Evidence is allowed a. This is evidence that the witness has not heard anything bad about the D. b. Allows for an exception to the NO SPECIFIC FACTS requirement because a witness may say that the D doesnt now or hasnt ever done a particular bad act i. The D doesnt do drugs skirts the boundary of specific facts. Character of Victim Recall FRE404(a)(2): 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. May use Reputation and Opinion, but not specific facts to create inference of conduct in conformity with character WIGMORE: The rumor of misconduct goes far towards fixing the misconduct as a fact upon the other person and thus does 3 improper things Violates the fundamental rule of fairness that prohibits the use of such facts Gets at them by hearsay only and not by trustworthy testimony

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Leaves the other person no means of defending himself by denial or explanation, such as he would otherwise have had if the rule had allowed that conduct to be made the subject of an issue. The Law does not Presume a D to have good character, instead we just shut the door to character until the D chooses to raise it Congress amended FRE404(a)(1) to provide that if the D offers evidence of an alleged victims character under FRE404(a)(2), the prosecution may offer evidence that the D shares this same trait of character, even if the D has not put his own character in issue. C. FOR CRIMINAL D ONLY 1. Why deny prosecutors the option to open character? 2. Why deny civil litigants the option to open character at all? D. FRE405(b) applies in 1. Rebutting an Entrapment Defense 2. Rebutting a Defense of Truth in Libel or Slander Action 3. Resolving a Parental Custody Dispute
Def Offer 404(a)(1)- opinion or reputation regarding the Defendant 1. Prosec Response Call Rebuttal Character Witness regarding the defendant 2. C/X the Defendants Character Witness regarding specific acts

404(a)(2) Opinion or 1. Call Rebuttal Character reputation regarding victim Witness regarding victim opinion and reputation 2. Call Rebuttal Character Witness regarding defendant - opinion and reputation 3. C/X Defendants Character Witness regarding victims specific acts

Def Offer First aggressor (in homicide cases only)

Prosec Response 1. Call Rebuttal Character Witness who testifies tot he victims character This exception exists because (1.) the victim is dead and cannot testify

Impeachment and Character for Truthfulness:

Methods of Impeachment (5 total- FRE 607 is just a definition) Non Character Based Impeachment Methods 1. Contradiction by Conflicting Evidence 2. Contradiction by Past Inconsistent Statements 3. Evidence of Bias Character Based Impeachment 1. FRE 607 Who May Impeach 2. FRE 608 Evidence of Character and Conduct of Witness 3. FRE 609 Impeachment by Evidence of Conviction of a Crime NON CHARACTER BASED IMPEACHMENT METHODS (3) I. Contradiction by Conflicting Evidence 1. EXAMPLE: First eye witness gives testimony of a red stoplight. Second eye witness gives testimony of a green stoplight. 2. This method may expose lies or mistakes of perception/memory/narration II. Contradiction by Past Inconsistent Statements 1. EXAMPLE: eye witness account of the events on a given day fluctuates over time- first its a red light, then its a yellow turning red, then its a green light upside on the traffic pole so it was mistook for red but really was green. 2. The gut reaction of justice is to lean toward the witness as a liar when impeached in this way.

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REMEMBER, this could just be a mistake of perception/memory/narration

III. Evidence of Bias 1. A relationship exists between witness and the incident/defendant which leaves them likely to lean one way or another. 2. Bias is a close kin to motive because it typically describes a non character based reason for acting 3. Corruption is a type of bias

CHARACTER BASED IMPEACHMENT METHODS (2) FRE607- Who May Impeach By any party, including the party calling the witness. FRE608 Evidence of Character and Conduct of Witness FRE608(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation,subject to limitations: 1. May refer only to character for truthfulness or untruthfulness, 2. TRUTH EVIDENCE Admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. FRE608(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. 1. May offer the witness' character for truthfulness or untruthfulness, 2. May offer the character for truthfulness or untruthfulness of another witness as to which character the current witness being cross-examined has testified.

Privilege against self-incrimination is not waived when examined with respect to matters that relate only to character for truthfulness. LIMITATIONS ON FRE608(b)(1) Must be probative of truthfulness or untruthfulness Ban on extrinsic evidence: Lawyer must accept the witness answer to the question Must survive FRE403 considerations Must have a good faith basis for asking a. Like some facts or extrinsic evidence (which cannot be used) b. Similar to FRCP 8

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FRE609. Impeachment by Evidence of Conviction of Crime FRE609(a) General rule. For the purpose of attacking the character for truthfulness of a witness, 1. Evidence that a witness other than an accused has been convicted of a felony shall be admitted, subject to Rule 403, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and 2. Evidence that any witness has been convicted of a crimen falsi shall be admitted regardless of the punishment FRE609(b) Time limit. 1. Evidence of a conviction is not admissible if more than ten years has elapsed since the latter of 1. The date of the conviction or 2. The release of the witness. 2. Unless the court determines that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. 3. Evidence of a conviction more than 10 years old must be communicated by the proponent to the adverse party via written notice and a fair opportunity to contest the use of such evidence must exist. FRE609(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if 1. Subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure a. based on a finding of the rehabilitation of the person convicted, b. and that person has not been convicted of a subsequent felony 2. OR the conviction was reversed on a finding of innocence. FRE609(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, in a criminal case, allow evidence of a

juvenile adjudication of a witness other than the accused if conviction of the offense 1. Would be admissible to attack the credibility of an adult 2. AND the court is satisfied that the evidence is necessary for a fair determination of the issue of guilt or innocence. FRE609(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. Character and Credibility: 6 exceptions to general rule of exclusion FRE413 FRE414 FRE415 FRE404(a)(1) FRE404(a)(2) FRE404(a)(3)- says FRE607, FRE608, FRE609 are all admissible evidences If 2witness is called to say 1witness is dishonest, then 3witness may be called to rebut the character arguments of the 2witness. Witness rules are fractal. You can ask for specific instances of honesty displayed by person being called dishonest You can ask for specific instances of dishonesty by the person who called the other witness dishonest Rehabilitation: a partys attempts to support a witnesss character for truthfulness. BASIC RULE OF REHAB: The Rehab evidence must respond as directly as possible to the theory of the impeaching evidence. Good Character may respond to a. Allegation of bad reputation for truthfulness (FRE608(a)) b. A second witness statement of his/her bad opinion of the first witness truthfulness (FRE608(a)) c. Convicted of a crime (FRE609) d. A prior bad act (FRE608(b))

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Good Character RARELY (NEVER) allowed to respond to Bias Error based in misperception/recollection

A POINT OF INCREDIBLE CONFUSION: PRIOR CONSISTENT STATEMENTS Prior Consistent Statements may respond to:
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Express or Implied charges that the witness trial testimony is a Recent fabrication The product of improper influence (subornation of perjury) Motive Prior Consistent Statements may NOT respond to Prior criminal convictions Prior bad acts Bad reputation for veracity