Character Evidence and Impeachment PDF

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Character Evidence 1. What is character evidence? a. General statements about someone’s character i. They’re violent etc b. Issue: When is character evidence admissible? 2. Three situations where evidence of a person’s character is admissible: different rules for dealing with each of these 3 rules a. When a person’s character is a material element in the case i. The character of the person is something that must be proved as part of the claim or defense ii. The character trait must be proved by a party iii. Should Rambo’s violence be admitted to show that violent behavior is an element of the crime? No. 1. That’s b/c being a violent person// having general disposition to be violent is not a crime of murder 2. You do not have to prove that someone has a general disposition to be violent to show they are guilty of murder. iv. A character traits are not elements of crimes! v. Very limited situations when character is an element of the case… 1. Two principal examples: a. Negligent entrustment, retention or hiring cases i. Character of person entrusted, retained or hired is an element of that claim 1. So plaintiff can over evidence of the character of the person is who is entrusted, retained or hired a. Any kind of character evidence is ok to use! ii. Defamation/Libel Cases 1. Truth is a defense and they can use reputation, opinion, or specific instances of conduct to prove the defense of conduct. b. When character evidence is used to prove circumstantial evidence of the conduct in question at the time of the event in issue i. In Criminal Cases 1. Criminal D’s character a. When can we use character of criminal D to show that he acted in conformity with the character trait in the event of issue? i. Prosecutors cannot use the bad character in their case in chief. ii. However, when we switch to defendant’s case in chief, D can offer evidence of a relevant character trait, that he has a good relevant character trait & to show that he

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acted in conformity w/ that character trait on the occasion in question and thus he didnt commit the crime. 1. If D himself testifies that he didn’t commit the crime, then this might even open the door for the prosecution in their rebuttal to attack criminal D’s character. 2. If they choose to do this, it only comes in one or two forms a. Calls character witness to stand who gives reputation and/or opinion testimony about a relevant character trait 3. But cannot have their witness talk about about specific instances If the D chooses to do this, then that opens the door to prosecution rebuttal. 1. There are two things can do to rebut evidence of the defendant’s good character: a. In their rebuttal case, Can call it’s own character witness to stand and they will testify to the relevant character trait, which won’t reflect well on the D b. The prosecution gets to cross the defendant’s character witness with “have you heard” or “did you know” questions that will reference specific instances of defendant’s character i. What if the witness says no he has not heard about this? ii. Can the prosecution use extrinsic evidence aka evidence other than the witness’s answer? iii. No. iv. Prosecutor has to take character witness answer. v. Even if he says yes, move on. vi. These questions will be offered to show that the character witness should not be believed, not that the defendant is a bad person. vii. If character witness gives reputation testimony, it’s

appropriate to ask “have you heard” viii. If character witness gives opinion testimony, it’s appropriate to ask “did you know” b. Example: Rambo is charged w/ murder. During case in chief, should prosecution be able to admit evidence that recently stampeded a herd of cattle, was convicted 3 x for assault, and i. All of these indicate Rambo is violent. ii. What is the inference that prosecutors want jury to draw? 1. He is in violent, he has general disposition to be violent// propensity 2. He acted in accordance w/ this propensity, and thus he committed murder 3. “Jury you know he committed murder b/c is a violent” iii. This evidence is not allowed in prosecution’s case in chief, so not admissible in prosecution’s case in chief. iv. Example: During the defense, Rambo calls his friend Trout to testify: 1. He is familiar w/ Rambo’s reputation of peacefulness and it is excellent 2. & I personally know Rambo and IMO he is a peaceful person. 3. Are these admissible? a. These two statements by Troutman both are admissible and both are admissible to prove that Rambo acted in conformity with the peaceful character on the day of the murder. b. How do you know he didnt commit the murder? He is a peaceful person and acted in conformity of being a peaceful person. i. 4. This is in the defendant’s case in chief and this can be done on their case in chief. v. Example: Can troutman say “he has turned the other cheek when being confronted with bullies?” 1. No, this a specific instance of conduct. Not permitted.

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Example: Could Troutman properly testify that his testimony for bravery and honesty are excellent? 1. No, these have nothing to do w/ murder. 2. The relevant character trait would be peaceful vs. violence. 3. This would admissible only if crime was one of dishonesty. vii. Example: Rambo calls Troutman to testify about peaceful character. Can prosecution, on cross, ask “did you know rambo shoot someone 3 years ago?” 1. Yes. 2. Have you heard of did you know reference specific instances of violence on the part of Rambo. viii. Example: Could prosector ask Troutman about asking Rambo cheating on his income tax? 1. That is incident of conduct that reflects negative on honesty and the relevant character trait is violence/peacefulness 2. Wrong type of act referenced “have you heard or did you know questions ix. Example: Rambo gets Troutman to speak about his Rambo’s witness. Prosecution gets Maverick to talk about Rambo’s character now. 1. This is ok, they can call their own witness in the rebuttal about the relevant character trait of evidence since criminal D opened the door. 2. Victim’s character a. If a self defense character, victim’s character is on the table i. A criminal D may introduce evidence of victim’s violent character in a self defense case to prove conduct in conformity w/ that behavior on the day in question ii. Criminal D can introduce evidence victim was violent and therefore acted violent on occasion in question and acted criminal D first iii. Criminal D calls character witness about victim’s violent character 1. That witness can talk about victim’s character via reputation testimony or opinion testimony 2. The witness cannot reference specific acts of violence committed by the victim iv. Then prosecution can rebut w/ evidence of victim’s good character AND with evidence of criminal defendant’s bad character of the relevant character trait

1. They can call character witness to the stand to talk about reputation testimony or opinion testimony 3. Victim’s character in a sexual misconduct case a. Policy based protections for victims of sex crimes b. Federal Rape Shield Law → in both criminal and civil cases in federal ct, following evidence is not ii. In Civil Cases 1. Rule: Character evidence to prove conduct in conformity is not permitted. a. Example: Plaintiff sues D for automobile neg. During plaintiff case in chief, Plaintiff seeks to admit evidence of D’s reckless driving. i. Not admissible. b. Example: Same facts as above, during defense, defense calls witness to show that D is a careful driver? i. Not admissible. c. Witnesses’ bad character for truthfulness to impeach credibility i. Deals w/ singular character trait: truthfulness ii. Truthfulness means : propensity to lie, general disposition to lie on the witness stand iii. We can use evidence of an evidence’s poor character for truthfulness to impeach their credibility 1. When does this happen? a. When a witness testifies at trial, that witness is subject to impeachment that they have a poor character for truthfulness 2. Three ways to show that the target witness has a poor character for truthfulness and can impeach for truthfulness a. Can call character witness to stand and that character witness will render opinion that target witness has poor character for truthfulness b/c they know them//Character witness can also say they know about target witness reputation and it is poor b. Using and offering evidence of certain kind of criminal convictions i. Witnesses who have been convicted of certain kinds of crimes are more likely to lie 1. Like felonies, & misdemeanors and felonies that involve dishonesty or false statement 2. Like fraud, perjury 3. These crimes are admissible to show target witness has poor character for truthfulness 4. Felonies of target witness are also admissible to show that witness is more likely to lie

a. Only admissible to impeach the target witness on the grounds of poor character for truthfulness if the court determines that the probative value of the conviction is not outweighed by the jury misusing the evidence c. Evidence of other bad acts that affect adversely on character for truthfulness i. These acts didn’t necessarily result in a conviction ii. Lawyer can ask target witness “isn’t it true you committed fraud” then witness can say yes/no and the lawyer is forced to take the witness’ answer so if witness say it’s not true then they cannot prove it with other evidence 3. Defendant’s other crimes for non character purposes a. General rule: other crimes or other specific bad acts of the defendant are not admissible during prosecution’s case in chief b/c all they show is the defendant’s bad character i. Example: D is charged w/ robbed w/ other bank. Cant show he robbed 2 other banks 6 months ago. b. However, sometimes these crimes are used to prove something more specific than character. i. Mnemonic device to remember what the other non character evidence are ii. MIMIC 1. Motive 2. Intent 3. mistake/accident, absence of 4. Identity 5. Common scheme or plan iii. Example: Prior crime of D of narcotic sales. Then he murdered cop who arrested him. Objection. 1. Should be overruled, this is motive → why he did the crime 2. Not showing bad character, shows motive, admissible iv. Example: D charged w/ intent to sell narcotics. D defense is that he had drugs with intent to use them, not to sell them. Prosecution wants to admit 1 yr ago he was also arrested for selling narcotics. 1. Intent → yes admissible 2. Was similar crime, etc can be admissible here. v. Example: D is charged w/ armed robbery of Walmart in August in afternoon of july 1st. Prosecution attempts to evidence that he robbed Belk at 12 on July 1st in same vicinity. 1. Used for identity, it probably was this particular D who robbed the walmart. Admissible. vi. Example: D is charged w/ robbing bank. Prosecution wants to admit two days b4 D stole a white acura. Robber of bank used white acura to rob bank.

1. Admissible → common scheme or plan. 2. The theft of the acura is all part of one criminal transaction. vii. If you are going to use one of these “other purposes”, how do you do this? 1. Use record of conviction & offer it into evidence 2. Or with other evidence a. Ask the D if he testifies b. Or use other witnesses or documents viii. If relevant, MIMIC crimes for non character purposes, can be used in civil cases like for a tort or fraud case. ix. You have to make sure that the D is actually contesting the issue that the MIMIC crime addresses. 1. If the D is not contesting it, then the crime does not have enough probative value. 2. Example: d is charged w/ murder. His defense is self defense a. Using MIMIC crime under the guise that it identifies D, is not permissible b. D is not saying he didnt do it, he is saying he had a justification for doing it. 4. Other sexual misconduct to show propensity in sex crime prosecution or civil action Impeachment 1. Remember, Under FRE 806, when a hearsay statement is introduced by one party, the declarant becomes sort of a witness who may be impeached in the same ways as would be permitted if the declarant actually testified, but in order for that statement to go to the truth of the matter asserted, the statement by the declarant, if they are being impeached by that way, must have been said at a proceeding. 2. Bolstering witness credibility: a. Attempting to strengthen witness credibility before it has been attacked b. Rule: Bolstering is generally prohibited w/o an attack on credibility or an attempt to impeach. c. Example: P calls W1 to stand. W1 testifies she saw D’s car run red light. D counsel says she has no questions for witness. P calls W2 testifies W1 has great rep for being truthful. i. Not admissible, objection should be sustained ii. You cannot try to strengthen witness’s credibility before it has been attacked. d. Exception: Prior identification of a person: Person that was robbed and points to D, and also picked D out of line up two weeks before this trial, this is allowed & is permissible form of bolstering. 3. Impeachment: Witness is not credible + jury should not believe them. a. Typically, lawyer is impeaching witness on cross, but you may impeach your own witness. b. Two procedural considerations: i. Can the impeaching fact be proven w/ extrinsic evidence?

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Can you use evidence other than the testimony the witness you are impeaching to prove the impeaching fact? 2. Or do you just have to accept the witness’s answer to your question? 3. You took a bribe for your testimony didn’t you? a. Can you prove this otherwise, with document, or testimony of different witness? b. Or can you just prove that they did take a bribe w/o asking this question? ii. Assuming that extrinsic evidence is permissible to prove the impeaching fact, must you first confront the witness w/ the impeaching fact before you prove it w/ extrinsic evidence iii. Also, remember that impeachment methods are still subject to other rules, like hearsay for example. c. Impeachment methods, how do we impeach? Seven different impeachment methods i. Prior inconsistent statements 1. Any witness can be impeached by showing that on some prior occasion, they made a material statement either orally or in writing that is inconsistent with the trial testimony. 2. Example: D is sued for neg. In a multi vehicle accident in which he was driving suburban. W testify for Plaintiff that she saw suburban run stop sign. On Cross, may defense counsel seek to establish that few days after accident, that jeep cherokee, but not the suburban ran the stop sign? a. Yes b. If witness admits this, may the D use the statement, that cherokee rather than suburban ran the stop sign? Is this substantive evidence? Or merely admissible to impeach? i. Only admissible to impeach ii. Not substantive evidence that jeep cherokee ran stop sign 3. Prior inconsistent statements do not come in for truth of the matter asserted, and if they are offered for the truth, then they are hearsay 4. But certain prior inconsistent statements can cast doubt in witness credibility and prove the truth a. One of those kinds of statements is a prior inconsistent testimony that was given under oath and given in a prior proceeding (deposition, former trial etc) 5. Must the witness be confronted w/ prior inconsistent statement while she is on stand or can be she be confronted later when she is no longer on stand? a. Timing is flexible! b. General rule: You are not required to immediately confront the witness but after it has been proven extrinsic evidence, then the witness must have some opportunity to explain/deny prior inconsistent statement

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c. Exception: No confrontation is required and no opportunity to explain the statement needs to be given if the witness who made the prior inconsistent statement if the witness is the opposing party. i. Addtl bonus: Those kinds of statements, even if not made under oath, come in for the truth due to hearsay exception, 801(d)(2). 6. If they say no to saying this prior inconsistent statement, then if there was a witness to that statement, then that witness can be called to the stand to say “they really did say that” and this will be admissible to impeach the target the witness but will not be used for the truth. Bias, interest, motive to misrepresent 1. Must we confront the witness with the alleged bias while witness is on stand? a. Federal court has discretion whether to require that or not. b. If we have done what court wants us to do with confrontation, may we prove it w/ extrinsic evidence? i. Court has discretion to permit prove of the bias w/ extrinsic evidence even if the witness admits the bias. ii. If someone is being impeached due to their motives of testifying, it is subject to Rule 403 which leans towards admissibility. Sensory deficiencies 1. Evidence of anything that could impact witness’s perception or memory a. Examples: poor eyesight, poor hearing, intoxication 2. Do not have to confront witness 3. And can use extrinsic evidence to prove the sensory deficiency 4. 5, 6 Showing witness has bad character for truthfulness// disposition to lie (4) bad rep about witness character for truthfulness [ Rule 608] ● What is character for truthfulness? It’s a character trait and has specific meaning, it is the tendency/propensity to lie on the witness stand. ● We can impeach the witness by showing the witness has poor character for truthfulness and they have a disposition to lie. ● Any witness can be impeached using this method. ● Do we have to confront the witness with the impeaching fact? ○ No, and it would be weird if we had to ask them “don’t ya lie on the witness stand?” ● Is extrinsic evidence admissible? ○ Yes, that is the only way you are allowed to prove this impeaching fact.

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You have to call character witness to stand and this character witness can give two types of testimony: ■ Opinion testimony ● In my opinion “target witness” has poor character for truthfulness ■ Reputation testimony ● In my opinion “target witness” has poor reputation in the community ■ They CANNOT talk about specific instances.

(5) criminal convictions ● Evidence of certain criminal convictions is permissible to impeach a witness who was convicted. [Rule 609] ● Has to be certain type of crime to impeach a witness: ○ A conviction of any crime that involves dishonesty or false statement is permissible to impeach the witness ○ If the conviction does not invole dishonesty or false statement, it has to be a felony & even then the CT can exclude by the danger of unfair prejudice ● Can introduce the record the convictions while off the stand ● General time limit: how long are these convictions available? ○ Conviction or release from prison, whatever is later, 10 years of time. (6) bad acts that did not result in truthfulness ● Like they lied on bar exam app ● Rule 608b ● If they say no, cant prove this bad act w/ extrinsic evidence. Have to take witness answer. 7. Contradiction 1. On cross examination and through questioning the witness, the cross examiner may try to get the witness she made a mistake or lied during her direct and if the witness admits she made a mistake, then they have been impeached by contradiction. 2. But if she does not admit that she made a mistake, can you prove that she did make a mistake with extrinsic evidence? a. They cannot do this, if the fact at issue is collateral. b. How do you know if something is collateral?

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If it has nothing to do w/ the case b/c it doesnt really a relevant fact in the case c. Example: Auto accident case. Witness testifies for P while leaning against maple tree saw light was red. When asked on cross about whether the tree was maple? i. The witness insists that it was oak. ii. May the defense prove that it is oak? 1. No, it’s a collateral matter....