Evidence Test Outline
Professor Crump Fall 2009
Part I – Rules 404-405 and 608 – 609
Rule 404(a) – Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
APPLIES ONLY TO CRIMINAL CASES
a. Character evidence generally – Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except…
1. Character of the 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 the 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 of rebut the same, or evidence of a character trait of peacefulness of the 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, 609.
b. Other Crimes, Wrongs, or Acts – Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity there with. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identiy, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Rule 404(a)(1): the Mercy Rule – divided into two parts:
1. Mercy Rule – allows the defendant to present evidence of his good character to the degree that it is “pertinent” to the crime with which he is charged
Rule 405 Methods of Proving Character
a. Whenever 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.
Michelson v. United States
What triggers evidence when offered under the mercy rule is the charges against the defendant. They taint the defendant as a bad character. You must show that the witness is aware of the tendency of the defendant to be honest in its community and would have knowledge of that.
Must show for a Reputation Witness:
2. Time must be relevant – must know the defendant in time that crime was committed
3. Must speak with authority about what the community thinks about the defendants character for honesty
Reputational Character Evidence – the witness is allowed to summarize what he ahs heard in the community, although much of it may have been said by persons less qualified to judge than himself. The evidence which the law permits is not as to the personality of defendant but only as to the shadow his daily life has cast in his neighborhood. Well described in a different connection as ‘the slow growth of months and years, the resultant picture of forgotten incidents, passing events, habitual and daily conduct, presumably honest b/c disinterested, and safer to be trusted b/c prone to suspect.
What kind of questions can you ask on Cross? NEVER ask reputation questions on cross
1. To show lack of awareness
2. Specific act questions – to test basis of knowledge of what reputational witness’s underlying knowledge. Can be an act, an arrest, any proof you want to show that the act is true by bringing in something like an arresting officer and or a victim of past crime.
404a tells us when character evidence can come in – applies to criminal cases only
404(a)(1) mercy rule – b/c the crime that someone is convicted of caries a character trait, either violence or dishonesty usually. Talks about how the defendant can bring evidence to counter the charge.
Three requirements for mercy rule witnesses to be put on.
1. If you know person before or after crime was committed then can not bring those witnesses, they must know them during the period of the crime.
2..Community, must be in same general community as defendant.
3. Must have knowledge of the defendants character
If you haven’t heard anything bad about defendant then you can use that as evidence.
Under COMMON LAW NOT FED says that opinion witnesses are not allowed. Must have a witness who testifies as to what the community thinks of person not what they personally think about the person.
405a tells us when tells us that under the mercy rule the defense can put on witness under reputation AND opinion testimony both.
Court thinks that reputation evidence sorts itself out over the wash of the years.
Hypo 9.1 can store clerk testify that he gave the defendant too much change and that the defendant returned it? NO it is a specific act an mercy rule they can only testify to reputation and opinon.
Hypo 9.2 The paper thing would not be let in because it is not a reputational thing for the community. But it could be argued that b/c it was in paper that it was a community reputational view.
General rule about character is not generally admissible to show that an honest person did some honest act.
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. 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.
· 405 deals only with allowable METHODS of proving character, not with admissibility of character evidence, which is covered in rule 404.
· Whenever a trait of character of a person is admissible, proof may be made by testimony as to
07 you can impeach any one even if they your own witness EXCEPT – if that witness is put on the stand solely for impeachment.
Rosario – Diaz – bolstering is where you put your own witness on witness stand and b/c you want jury to believe you witness you ask him questions that will increase the probability that he would be believed.
ONLY READY TO PG. 137 for FRIDAY
Impeaching a Witness with Prior Convictions
Rule 609. Impeachment by Evidence of conviction of Crime.
a. General rule. For purposes of attacking the character for truthfulness of a witness.
1. Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if 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 crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
b. Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
c. Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if:
1. The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent or
2. the convictions has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.