CHARACTER EVIDENCE OUTLINE By: Terry McCarthy I. Introduction A.

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)

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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.

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GER exceptions -- using character evidence for conformity purposes A. Rule 404(a)(1) -- Character of accused (Mercy Rule)

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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. In other words, he has good character, and he acted consistent with this good character on the occasion in question. Again, this is substantive evidence, 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. Mediums Under the federal rules, the mercy rule can be activated with reputation and opinion evidence. Accordingly, 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. He must use reputation and opinion evidence. Mercy Rule procedure a. Unless it is a 405(b) case where character is an essential element of the case from the outset, the character of a criminal defendant is NOT at issue at the outset of the case. A criminal defendant, however, can inject character into the case by activating the mercy rule under Rule 404(a)(1). The standard way to activate the mercy rule is to call character witnesses to testify about the defendants reputation in the community for a pertinent trait, or the witnesses opinion about the defendant for a pertinent trait. A pertinent trait is one that is relevant to the crime. For a reputation character witness, the defense lawyer must lay the foundation to show that the witness has sufficient contacts with a particular community, and that the accused has enough contacts to have formed a reputation in that community. The lawyer then asks the witness to describe the defendants general reputation in that community for the pertinent trait. For an opinion character witness, 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. The lawyer then asks the witness for his opinion about the defendant with regard to the pertinent trait. The mercy rule can also be activated by opening the door. After the defense character witness is finished with his direct testimony, the prosecution can cross examine the witness. During the cross-examination, 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

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(See 405(a), last sentence). These questions are to impeach the character witness, and are not considered substantive evidence. 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.e., he cant just make things up). The acts must be relevant to the character trait at issue. The prosecution must have a good faith basis that the acts affected the defendants reputation in the community (or, if an opinion character witness, that the acts would reasonably affect a persons opinion for the trait).

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The prosecution can rebut with its own character witnesses in its rebuttal case. The same rules for the defendants character witnesses apply, but the prosecutions witnesses would give negative testimony about the pertinent trait.

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Alabama Mercy Rule There are currently 2 differences in the Alabama rule: a. b. Alabama does not allow opinion evidence for the mercy rule. Alabama will allow evidence about an accuseds general reputation, i.e., while attaching a pertinent trait is allowed, it is not necessary.

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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 victims character on the occasion in question. This rule will typically only be utilized in cases such as assault, murder, etc., where the defendant claims self defense. The criminal defendant will often use this rule to essentially say that the victim is a violent person, and the victim acted in conformity with that violent character on the occasion in question (i.e., the victim started the fight or did something to make the accused fear for his safety). Mediums Under both Alabama and Federal rules, this rule can be activated with reputation and opinion evidence. Accordingly, 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):

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In any criminal case, it applies just like Rule 404(a)(1). Defendant calls reputation or opinion character witnesses, and after laying the same foundations in 404(a)(1), the witness will testify that the victim has a bad reputation for violence, aggressiveness, etc. (or if it is an opinion witness, that the witnesses opinion is that the victim is violent, aggressive, etc.). This is substantive evidence that the victim was aggressive and/or violent on the occasion in question. On cross-examination, just like Rule 404(a)(1), 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.e., Have you heard or did you know that the victim participates in non-violent peace marches on a weekly basis?). The prosecution can also rebut with its own character witnesses who will testify to the peaceful character of the victim. The same foundation rules apply as to the defendant, and the testimony of these witnesses is limited to reputation or opinion evidence. Federal 2000 amendment adds one component to the above paragraph. If the defendant injects the negative character of the victim under Rule 404(a)(2) (i.e., that the victim is violent), the prosecution can rebut by calling character witnesses who will testify that the defendant is violent. So, if the defendant calls character witnesses to testify that the victim is violent, aggressive, etc., 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; (2) evidence that the defendant is violent (and acted violent on the occasion in question). This is all substantive evidence, and the jury can use the evidence to infer that the person acted in conformity with that character on the occasion in question. Homicide cases if the victim is dead, and the defendant offers factual testimony that the victim was the first aggressor, the prosecution can rebut this evidence by calling character witnesses to say that the victim is a peaceful person. The same foundational rules from above apply, and the jury can use this as substantive evidence that the victim acted in conformity with his peaceful character on the occasion in question.

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Alabama Rule 404(a)(2) Differences with federal rule: a. b. In Alabama, Rule 404(a)(2) applies in civil cases. Alabama has not yet passed the 2000 amendment.

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Defendants knowledge of the victims character is not required under this rule i.e., the defendant can use Rule 404(a)(2) whether he knew of the victims violent character or not. Contrast this with offering state of mind (non-conformity) evidence, in which the defendant has to know of the evidence being offered.

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Rule 404(a)(3) Impeachment 1. 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. In other words, the jury can use certain character evidence of the witness to infer that the witness is not telling the truth on the witness stand.

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Rules 413, 414, and 415 Sexual predator cases (Federal court only) 1. Rule -- in prosecutions for sexual assault (413) and child molestation (414), and in civil cases regarding the same (415), evidence of a defendants commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered for any matter that is relevant. The prior sexual assaults and instances of child molestation do not need to be convictions. The same standard for 404(b) applies. Evidence of prior sexual assaults or child molestation should be admissible (subject to Rule 403), when the government (or plaintiff) presents sufficient evidence to support a finding, by the preponderance of the evidence, that the Defendant committed the prior act. 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.

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Rule 406 Habit 1. 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. For something to be a habit, it must satisfy two elements. First, it must be the type of activity that does not require a lot of complex thought, and is almost semi-automatic. Second, the person or organization generally must have performed the act multiple times.

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GER exceptions using character for non-conformity purposes A. Rule 404(b) evidence of other acts is admissible for purposes other than conformity such as motive, intent, knowledge, plan or scheme, etc. The other purpose, of course, must be material, relevant, and satisfy rule 403. 1. 2. Rule 404(b) applies in civil and criminal cases. Rule 404(b) burden the offering party must lay the foundation for the jury to reasonably conclude that the other act occurred, and that the defendant was the actor. It is possible to introduce other acts that occurred subsequent to the act in question, depending on the purpose for which the other acts are offered.

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Rule 404(a)/405(a) this would allow a party to introduce reputation and opinion evidence for non-conformity purposes.

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GER exceptions character as an essential element A. Rule 405(b) when character is an essential element of the crime or cause of action, or the defense, character evidence in the form of reputation, opinion, or acts can be introduced. Very few cases where this applies, most notably: 1. 2. 3. Negligent entrustment Entrapment Defamation, where Defendant pleads truth.

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