problem 3a – 3b (rule 404 and the criminal case exceptions)

Problem 3A – 3B(Rule 404 and the

Criminal Case Exceptions)

Wanda’s Testimony

D walked up to V, called V a “dirty

SOB,” pulled wrench from purse, & hit V in

the head with it.Any 404

problems?Isn’t D’s calling V a “dirty SOB” a PBA

under 404?

Dirty SOB Testimony

Folks who call others SOB’s are SML to be violent folks

D called V a “dirty SOB”

D killed VD has a violent

character

Folks who are violent are SML

to kill others

Intermediate Fact Wanda

Forbidden Character Propensity Inference

Alternative Inference

One who calls X a “dirty SOB” is SML to be angry

at X

D called V a “dirty SOB”

D killed VD was angry at V

One who is angry at X is SML to kill X

Intermediate Fact

Forbidden Character Propensity Inference??

Wanda Not a

Characte

r

Trait

No! Not a Character Inference

D’s “Dirty SOB” comment is not a Prior BA anyway.

• Extrinsic v. Intrinsic Conduct -- see last paragraph of ACN to 1991 Amendments

• Res Gestae (Complete Story) Principle -- See PLG 5.27

Willy’s Testimony

A year ago, D hit Orville in the knee with a baseball bat.

Pertinent Trait?

Specific Act? Opinion?

Reputation?

Willy’s Baseball Bat Testimony

Folks who hit others w/ bats are SML to be violent people

1 yr ago, D hit O with

BB batD killed V

D is a violent person

People who are violent are SML

to kill

Forbidden Character Propensity Inference?YesCriminal Case

Exception?NoProsecutor can’t attack first

Any other problem?Can’t Use Specific ActsWhat Rule? ________405

Connie Counselor’s Testimony

D is subject to fits of rage & anger.

Pertinent Trait?


Reputation? Connie

Connie’s “Rage & Anger” Testimony

D subject to fits of rage &

angerD killed V

People who are subject to fits of rage & anger are SML to kill

Forbidden Character Propensity Inference?

Connie Counselor

YesCriminal Case Exception?NoProsecutor can’t attack first.

I have known D for years and she is a

non-violent and truthful person


Reputation?

Mayor’s Testimony about Doris

Pertinent Trait?

truthfuland

Disaggregate

DisaggregateDisaggregate

Disaggregate

DisaggregateDisaggregate

D is not violent


D is truthful


• Not pertinent trait for killing.

• Is pertinent character trait for credibility

• But witness credibility rules are different

D is truthful

D is not violent


Mayor’s testimony: D is non-violent

D is completely non-violent

D did not kill V

People who are non-violent are somewhat less likely (SLL) to kill


Mayor

YesCriminal Case Exception?YesDefendant can offer character evidence first.

Any 405 problem?It’s OK because opinion.

Criminal Case Exceptions for Defendant (the “Mercy Rules”)

• D may offer his own good character traits if the traits are pertinent

• D may offer victim’s character traits if the traits are pertinent

Prosecutor Now offers Counselor’s Testimony

D is subject to fits of rage & anger.

Connie

D is not violent

Mayor

Earlier Testimony

Now

Counselor’s Testimony in Rebuttal

D subject to fits of rage &

angerD killed V

People who are subject to fits of rage & anger are SML to kill


Connie Counselor

YesCriminal Case Exception?YesP can rebut w/bad character once D has offered good character.

Criminal Case Exceptions for Prosecutor (the “Rebuttal Rules”)

• If D has offered evidence of D’s own good character, P may rebut with evidence of D’s bad character.

• If D has offered evidence of V’s bad character, P may rebut with evidence of V’s good character.

• In homicide case, if D has offered evidence that V was 1st aggressor, P may rebut with pertinent evidence of V’s good character -- even though D has not attacked V’s character.

P Now Offers Baseball Bat Testimony

A year ago, D hit Orville in the knee with a baseball bat.

Baseball Bat Testimony as Rebuttal

Folks who hit others w/ bats are SML to be violent people

1 yr ago, D hit O with

BB batD killed V

D is a violent person

People who are violent are SML

to kill

Forbidden Character Propensity Inference?YesCriminal Case

Exception?YesProsecution can rebut because D has opened door (offered good character)

Any other problem?Still Can’t Use Specific ActsDon’t forget rule ________405

Rule 405 and Specific Acts

• Specific acts can be used to prove character only if the character trait is “an essential element of the charge, claim or defense.”

• Isn’t violent character an essential element of murder?

What can P do with baseball bat incident?

Ask Mayor Marvin about it on cross.But Doris has never been charged or convicted of the baseball bat assault.

Still permitted to ask so long as P has:a good faith basis for believing the incident really happened.

D Offers Mayor’s Testimony About V & W

V& W are known as violent folks who

frequently engage in armed robbery.

Mayor


Reputation?

Pertinent Trait?


Mayor

W is known to rob

W is known as a violent

person

V is known as a violent

person

V is known to rob


Mayor


person

People who are violent are SML to attack first.

Mayor: V is known to be violent

Most folks believe V is a violent person

V attacked first

If most folks think X is true, it is SML that it

is true.


Mayor

YesCriminal Case Exception?YesDefendant can offer victim’s character evidence first.

Any 405 problem?It’s OK because reputation.

Second Mercy Rule

V is a violent person


Mayor

W is known as a violent

personDoes this

fit under

any

exception

Criminal Case Exceptions for Defendant (the “Mercy Rules”)

• D may offer his own good character traits if the traits are pertinent

• D may offer victim’s character traits if the traits are pertinent

Is Wanda a Victim

Is Wanda

a victim?

Purpose vs.

Language

Mayor: “They frequently rob.”

Mayor

W is known to rob

V is known to rob

•Is this different?•Is it a character trait?•If so, is it a pertinent trait?

P Offers Rabbi Ralph’s Testimony

V was truthful, timid &

peaceable.

Rabbi Ralph


Reputation?

Pertinent Trait?

Disaggregate

Rabbi: V timid & peaceable.

V was peaceable &

timid

V did not attack first

People who are timid & peaceable are SLL to attack first

Forbidden Character Propensity Inference?YesCriminal Case Exception?Depends on when P offers it.

Rabbi Ralph

When is it offered

V was peaceable &

timid



Rabbi Ralph

Criminal Case Exception?

Offered in P’s Case in Chief

When is it offered

V was peaceable &

timid



Rabbi Ralph


After Mayor’s

“V is violent”

testimony

When is it offered

V was peaceable &

timid



Rabbi Ralph


After Doris testifies butD doesn’t

call Marvin

Problem 3B

Do Problem 3B

Connie’s Testimony After the Mayor’s

Mayor


personD is subject

to fits of rage & anger.

Connie

The New Rebuttal RuleIf D has offered evidence of

V’s bad character, P may rebut with evidence of D’s bad character. (Must

be same trait)

Don’t Forget• Rule 404 applies to good

character as well as bad character.

• Rule 404 does not forbid using character evidence when character is an element of the charge, claim, or defense.

Good Character or Civil Cases

D is a safe driver

D was speeding

before wreck

Safe drivers are SLL to speed


Someone who often sees D driving

Yes: Good Character Testimony Covered by Rule 404 too.What if it’s a civil case?The basic propensity evidence

rule applies to civil cases too.But the criminal case exceptions

do not.

Negligent Hiring CaseNeed to Show that EE Was Violent

EE is a violent person


No Evidentiary Hypothesis Necessary

Connie Counselor

Forbidden Character Propensity Inference?No

Another Negligent Hiring Case: Need to Show EE was Violent Person

Folks who hammer others are SML to be violent people

EE hit Jim in the head w/hammer



No Evidentiary Hypothesis Necessary

Forbidden Character Propensity Inference?No

problem 3a – 3b (rule 404 and the criminal case exceptions)

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