Character + Impeachment

Exceptions (Criminal Cases)

404(a)(2)(A) a defendant may offer evidence of their own pertinent trait, and if the evidence is admitted

Character Evidence 404

404(a)(1) Prohibited Uses. Evidence of a person’s character/trait to prove the person acted in accordance with the character or trait.

404(a)(2)(B) Limitated by Rule 412 (Sex-Offense: Victims Sexual Behavior or Predisposition), a defendant may offer evidence of a victim’s pertinent trait

Prosecutor may offer evidence of the victim’s trait of peacefulness to rebut evidence that the victim = first aggressor.

Defense does not need to open the door

IF Defense opens the door

W/ FRE 405(a): Reputation or Opinion evidence

or the judge admits evidence (can't admit specific acts)

Proseuciton may: under

404(a)(2(A)

... offer evidence to rebut

404(a)(2)(B)

(i) Offer evidence to rebut

(ii) evidence of defendants same trait

404(a)(2)(C) in a homicide case

Crimes, Wrongs, or Other Acts

404(b)(1) Prohibited Uses. Evidence of crimes, wrongs, or other acts are not allowed to prove a person's character to prove action in accordance with the character

Permitted Uses 404(b)(2)

(Criminal Case)

motive;

opportunity;

intent;

preparation;

plan;

knowledge;

identity;

absence of mistake;

or lack of accident.

Prosecution must:

(A) provide reasonable notice of the general nature of the evidence

(B) do so before trial - or during trial if the court, for good cause, excuses lack of pre-trial notice

IF requested by Defendant

FRE 405(a) On cross-examination of the witness, questions about relevant specific acts are allowed.

BUT NO EXTRINSIC EVIDENCE UNLESS FRE 413, 414, 415

Restrictions: Good faith basis to ask the question; is the witness likely to have known or have heard of the incident; On pertinent trait

To admit evidence under FRE 404(b)(2) 3 Requriements

1. Noncharacter purpose ^

2. The proponent must introduce evidence that the person who allegedly committed the act in fact did (ESSF)

3. Respond to FRE 403

IMPEACHMENT AND REHABILITATION WITH CHARACTER EVIDENCE

FRE 608: WITNESS'S CHARACTER FOR TRUTHERFULNESS OR UNTRUTHFULNESS

Impeaching party ON CROSS (if the court allows it) may inquiry into specific instances if they are probative of the character for truthfulness or untruthfulness

FRE 608(b) allows inquiry into:

(1) a witness's own acts

(2) acts of the person the witness testified about

Have to live with the witness says

FRE 608(a): Allows impeachment of witness w/ Reputation or Opinion Evidence (ONLY CHARACTER FOR TRUTHFULNESS OR UNTRUTHFULNESS)

IMPEACHMENT

REHABILITATION

FRE 608(a): Evidence of truthful character is admissible ONLY AFTER the witness's character has been ATTACKED

FRE 608(b): NO EXTRINSIC EVIDENCE OF SPECIFIC ACTS

FRE 609: IMPEACHMENT BY EVIDENCE OF A CRIMINAL CONVICTION

609(a): One may attack a witness's character for truthfulness by evidence of a criminal conviction

EXTRINSIC EVIDENCE ALLOWED

FRE 609(a)(1): Felony: crime punishable by death or 1+ years of imprisonment

FRE 609(a)(2): Automatic Admissibility of "Dishonest Act or False Statement"

LESS than 10 YEARS

FRE 609(b): 10 (PLUS) YEARS

REVERSE 403 balancing test which favors inadmissibility

FOR (D): FRE 609(a)(1) = REVERSE 403 (probative value must outweigh the prejudice to the defendant. Favors exclusion an dputs burden on prosecution to justify admissiblity)

FOR (Witness NOT (D)): Regular 403 which favors admissability

EVIDENCE OF CHARACTER WHEN CHARACTER IS AN ESSENTIAL ELEMENT OF CLAIM OR DEFENSE:

405(b): Reputation, opinion and specific acts are potentially admissible when character is an essential elemnt.

Limited by FRE 403

IMPEACHMENT

613(a) - the examiner on cross need not disclose the contents of a prior inconsistent statement to the witness

613(b) Extrinsic evidence of inconsistent statements may be admissible if

(1) the witness has an opportunity to explain the statement

(2) opposing pary has an opprotunity to explore the inconsistency w/ the witness

IMPEACHMENT W/ PRIOR STATEMENT

FRE 613: WITNESS'S PRIOR STATEMENT: prior statement cannot be used for the truth, just that the witness is inconsistent