character evidence. character evidence (cont.) character evidence: refers to the use of evidence of...
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Character Evidence
CHARACTER EVIDENCE (cont.)
Character Evidence: refers to the use of evidence of a person’s character to prove that on a given occasion that person acted in conformity with his or her character.
CHARACTER EVIDENCE (cont.)
3 types of character evidence: specific instances of conduct opinion evidence reputation evidence
CHARACTER EVIDENCE (cont.)
Ed the crooked car salesman hypo: Ed sells friend#1 lemon car Ed sells friend #2 lemon car
CHARACTER EVIDENCE (cont.)
Reasons to exclude character evidence:
1. turns one trial into multiple trials – risk and cost of trials within trials
CHARACTER EVIDENCE (cont.)
Reasons to exclude character evidence:
2. danger that the finder of fact may become confused about the issues to be decided
CHARACTER EVIDENCE (cont.)
Reasons to exclude character evidence:
3. Risk that the jury may unjustifiably return a verdict against the party against whom the character evidence has been offered
CHARACTER EVIDENCE (cont.)
This concern (the jury may unjustifiably return a verdict based on character) is based on several assumptions:
that the fact finder will overestimate the probative value of character evidence – if jurors learn that the party previously engaged in similar misconduct, they may jump to the unwarranted conclusion that the party must be guilty of the misconduct charged
CHARACTER EVIDENCE (cont.)
This concern (the jury may unjustifiably return a verdict based on character) is based on several assumptions:
that the character evidence will invite jurors to convict defendant because he is a bad person
CHARACTER EVIDENCE (cont.)
This concern (the jury may unjustifiably return a verdict based on character) is based on several assumptions:
that jurors may seek to even the score – convict in present case for bad acts in prior case
CHARACTER EVIDENCE (cont.)
Basic concept in our criminal justice system: individuals are accountable only for what they do and not for what they are
e.g. Can convict for possession of drugs but not for being an addict DUI vs being an alcoholic Rape vs sexual deviant
CHARACTER EVIDENCE (cont.)
Evid.Code §§ 1100-1109
Sec. 1100 – all relevant character evidence admissible unless otherwise limited by statute
No equivalent rule in FRE
CHARACTER EVIDENCE (cont.)
Sec 1101(a) – character evidence or evidence of a trait of character inadmissible to prove conduct on a specific occasion (reputation, opinion or specific instance of conduct)
FRE 404(a) same
Exceptions to proving conduct on a specific occasion
Evid. Code §1101(b) and FRE 404(b) – another class
Exceptions to proving conduct on a specific occasion (cont.)
Evid. Code §1102 and FRE 405(a) defendant can offer evidence of his good
character and prosecution can rebut it But, defendant limited to opinion and
reputation evidence – no specific instances of conduct
Exceptions to proving conduct on a specific occasion (cont.):
FRE 405(a) – rebut with all 3 types
Evid. Code §1102 -- prosecution may rebut with opinion and reputation;
specific instances of conduct by way of “have you heard…?” questions
Exceptions to proving conduct on a specific occasion (cont.):
Rebuttal with specific instances of conduct: People v. Ramos (1997) 15 Cal.4th 1133, 1173
[when a defense witness other than the accused testifies to good reputation of accused, prosecution may inquire into specific acts or conduct that are inconsistent]
prosecution must have good faith belief have you heard questions and would it change your
opinion questions prosecution cannot prove through extrinsic
evidence Here, defense wit. testifies to D’s piety Rebuttal: D caught with shank 5x
Exceptions to proving conduct on a specific occasion (cont.):
Why does prosecutor get to rebut good character evidence specific instances of conduct when defendant is barred from doing so in establishing good character?
Exceptions to proving conduct on a specific occasion (cont.):
Whether defendant did the act in the prior specific instance is not material
Instead, the material issue is testing the credibility of the character witness and the probative quality of their testimony and not whether defendant committed that prior act
Exceptions to proving conduct on a specific occasion (cont.):
For the same reasons, defendant is precluded from disproving prior bad act or explaining the circumstances surrounding it
Exceptions to proving conduct on a specific occasion (cont.): Evid. Code § 1103 and FRE 404(a)(2) defendant may offer character evidence
of victim – opinion, reputation or specific instances of conduct – to prove conduct of victim in conformity with the character evidence
prosecution may rebut with all three types Reputation, opinion & specific instances of
conduct
Exceptions to proving conduct on a specific occasion (cont.):
Evid. Code § 1103 and FRE 404(a)(2) if defendant offers evidence of victim’s
character for violence, prosecution may offer evidence of defendant’s character for violence
All 3 types: reputation, opinion and specific instances of conduct
Exceptions to proving conduct on a specific occasion (cont.):
Evid. Code § 1103 and FRE 404(a)(2) exception to exception:
in sexual assault prosecution – defendant cannot offer any of 3 types against victim to show that victim consented
Rape shield law –see also 782 and FRE 412 Does not apply to prior history between
defendant and victim
Exceptions to proving conduct on a specific occasion (cont.): character at issue in litigation: 1. defamation a. where existence or non existence of
the trait attributed by defendant to the plaintiff;
b. to mitigate damages by showing that plaintiff’s reputation was so bad as to not be harmed by defendant’s untruthful statements
Exceptions to proving conduct on a specific occasion (cont.):
character at issue in litigation: 2. wrongful death a. re: damages to show decedent’s
predisposition to provide support, consortium, love etc to survivors
Exceptions to proving conduct on a specific occasion (cont.):
character at issue in litigation: 3. negligent entrustment – to show
operator’s unfitness to operate the particular instrumentality
Exceptions to proving conduct on a specific occasion (cont.):
character at issue in litigation: 4. wrongful discharge/termination – to
show employee’s unfitness for job
Exceptions to proving conduct on a specific occasion (cont.):
character at issue in litigation: 5. sexual harassment suit – a. hostile work environment – behavior
with other workers
Exceptions to proving conduct on a specific occasion (cont.):
character at issue in litigation: 6. child custody proceedings – to show
who is most fit to parent
Exceptions to proving conduct on a specific occasion (cont.):
character at issue in litigation: 7. juvenile dependency proceedings – on
issue of termination/reinstatement of parental rights
Exceptions to proving conduct on a specific occasion (cont.):
character at issue in litigation: 8. malicious prosecution – to show
defendant’s lack of probable cause to believe plaintiff committed bad act, particularly where defendant knew of plaintiff’s good character
Related Concepts
Subsequent Remedial Conduct FRE 407; Evid. Code § 1151
Offers of Compromise FRE 408; Evid. Code § 1152
Payment of Medical Expenses FRE 409; Evid. Code § 1152
Liability Insurance FRE 410; Evid. Code § 1155
Pleas and Plea Discussions FRE 411; Evid. Code § 1153
Habit evidence
FRE 406 Evid. Code §1105 not an exception to ban on character
evidence to prove conduct on a specific occasion – it is its own rule
“a regular response to a repeated specific situation”