Tillers' NOTES on the First Set of Charcter Evidence Problems

Scenario A

Murder Trial. DD is charged with killing Valiant Victim on June 1, 2000. D invokes his privilege against self-incrimination and does not testify.

The prosecution calls a character witness, W-1. It proposes to have W-1 testify that DD has the reputation in the community in which she resides of being a violent person.

Please explain why DD's objection is sustained.

{classic violation of character evidence rule; see Michelson & 405(a)}

The prosecution then calls W-2 and proposes to have her testify that she has seen DD kill several people other than VV.

Please explain why DD's objection is sustained.

{violation of character evidence rule:

acts --> propensity --> conduct in issue

See 404(b), 1st sentence}

DD then calls W-3 and proposes to have him testify that DD's reputation among her associates is that of a non-violent and peaceable person.

How should the court rule on the government's objection?

{admissible: mercy rule; accused can offer his/her character circumstantially; see Michelson & 404(a)(1)}

Assume that the trial court overrules the government's objection. Later in the trial the government calls W-4 and proposes to have him testify to DD's reputation for violence.

How should the court rule on DD's objection?

{overruled: if accused offers circumstantial character evidence, government can rebut; see FRE 404(a)(1)}

The government also offers W-5's testimony that he saw DD attack and beat Sam Jones, Martha Smith, and Neat Noble.

How should the court rule on DD's objection to this evidence?

{objection sustained; government can rebut, but can only do so with character evidence of the same kind, reputation and, under FRE, either reputation or opinion, depending on what type of evidence the accused chose. Cf. 405(a). Note: character is NOT “in issue” here for purposes of FRE 405(b)}

DD is on trial for murder. The government puts on its case and rests.

DD then offers to have W-6 testify that on numerous occasions in the past he saw DD act as a peacemaker and resist violence in the face of physical provocation and danger; for example, W-6 saw DD respond to a slap with a smile rather than with a blow or a scowl.

How should the court rule on the government's objection?

{objection sustained; at common accused limited to reputation evidence, see Michelson; and under FRE, to either reputation or opinion; but in any event accused cannot offer specific instances of conduct; the evidence must be short and sweet}

Assume that the trial court overrules the government's objection. The government then offers to have W-7 testify that on one occasion, when DD was slapped, DD did not turn the other cheek, but instead turned a machete in the slapper's belly and kicked his face.

Please explain why the trial court overrules DD's objection to this evidence.

{principle of fighting fire with fire – or, in modern terminology, curative admissibility: if one side has been allowed to introduce inadmissible evidence, the trial court has the discretion to cure its own error by allowing the other side to respond with inadmissible evidence, and it should do so when and only when it believes that rebuttal by otherwise inadmissible evidence is the most effective way to reduce the impact of the original error without creating a new problem}

End of Scenario B

Scenario C

DD is on trial for murder.

DD offers to have W-8 testify that in his opinion DD is a peaceable and law-abiding person.

How should the court rule on the government's objection?

Answer:

1. at common law the objection would be sustained -- because DD could offer only reputation evidence to offer circumstantial character evidence to show his own conduct; but under the FRE accused can offer either reputation or opinion; the accused has a choice

2. the “general” character trait “law-abiding” may be inadmissible – should be inadmissible, it has repeatedly been argued

Assume that the court overrules the government's objection and that W-8 gives his opinion that DD is a peaceable and law-abiding person. The prosecutor then cross-examines W-8. She asks W-8 if on June 1, 1989, W-8 stole $10,000 from his employer.

How should the court rule on DD's objection to this evidence?

{the court should perhaps overrule DD’s objection -- because here DD has chosen in the first instance to offer opinion evidence, and a lay opinion witness is expected and required to base opinion on personal observations, and the prosecutor is therefore entitled to inquire into the personal observations on which W-8’s opinion rests; see 405(a), 2d sentence.

The problem posed here differs from the Michelson scenario in this way: there evidence of reputation was offered to show the character of a person (Michelson); there cross-examination was allowed only into the witness knowledge of contrary stories – contrary hearsay – of conduct inconsistent with the reputation that was testified to on direct examination [Only “Have you heard” questions are permissible.]}

{amended Scenario C: DD is on trial for murder. W-8 testifies to his opinion of DD’s non-violent character.} The prosecutor then asks W-8 if he saw DD steal $15,000 from her employer on May 13, 1997.

How should the court rule on DD's objection to this evidence?

{sustained:

1st, there is no reason to think that DD has testified or that any of his testimonial statements have been given in evidence; therefore, one cannot offer this evidence of D’s theft from employer to impeach DD

2d, even if DD has testified, prohibition on extrinsic evidence of a collateral matter at CL; and under federal law, the similar prohibition in FRE 608(b), 1st sentence, apply}

End of Scenario C

Scenario C.1

DD is on trial for murder in 2000.

Trial is in federal court.

10A

W-8 testifies to DD's reputation for non-violence.

On cross-examination AUSA asks about W-8’s knowledge of other violent acts by DD.

DD objects, citing Michelson.

The AUSA replies with a citation to 405(a), 2d sentence, noting that this sentence authorizes inquiry into relevant specific instances. She also points to the Advisory Committee’s Note, which asserts that reputation is a covert form of opinion.

Who wins?

•One federal trial court said that D wins: the Michelson cross-examination principle still applies if D chooses to offer reputation rather than opinion evidence. But treat this is an open question.

10B

At the trial W-8B testifies for DD: In my opinion DD is a non-violent person

On cross-examination the prosecutor asks W-8 if he saw DD attack Sammy Smith with a knife on June 5, 1995.

DD: objection

Ruling?

See 405(a), 2d sentence:

"On cross-examination, inquiry is allowable into relevant specific instances of that person's conduct."

Cf. 608(b)(2), 2d sentence (cross-examination of character witness on credibility)

10C

DD calls W-8C. He wants W-8C to give his opinion that DD is a non-violent person. However, instead of asking directly for that opinion, he first asks W-8C to recount his observations of specific instances of DD's non-violent behavior.

The AUSA objects.

DD replies that when a witness gives an opinion, the witness is generally allowed to give the information on which he bases that opinion. Indeed, the trial court has the discretion to require that an opinion witness first state the facts or observations upon which the opinion rests. See FRE 701 & 611. Hence, W-8C should be allowed to first recite the basis for his opinion that DD is a non-violent person.

Does DD win?

{Probably not.

The idea here is still that testimony about character should be short and sweet, unless the opponent goes into detail on cross-examination. The use of the normal rules about opinion evidence would subvert this principle.}

End of Scenario C.1

Scenario D

DD is on trial for murder. The state puts on its case and rests.

DD then offers to have W-9 testify that VV, the alleged victim of DD's alleged murder, had the reputation of being a violent person.

Explain why the prosecution's objection is overruled.

{another exception to the character evidence rule; see FRE 404(a)(2) (accused allowed to show a pertinent character trait of victim; at common law this right was available only in criminal homicide cases, but some later common law and FRE changed that)}

The prosecution later offers to have W-10 testify that on many occasions he saw VV treat people with kindness and that on many occasions he saw VV respond to violent attacks with expressions of love and other benign and peaceable behavior.

How should the court rule on DD's objection?

{objection sustained; again prosecution’s rebuttal at common law of circumstantial character evidence offered by accused is limited to reputation evidence when the accused was properly limited to using reputation evidence; cf. FRE 405(a); compare prosecution’s cross-examination of accused’s reputation witness, where a different rule applies, see my character evidence rule chart}

12A

The prosecution also offers to have W-10A testify that DD's reputation in the community in which (s)he resides is that of a violent person.

How should the court rule on DD's objection?

{in most common law jurisdiction the accused’s submission of character evidence about a victim did not give the prosecution to submit character evidence about the accused; and that was the originally the FRE rule; but a recent amendment to FRE 404(a)(1) changed that -- see rule; not all states have followed suit}

End of Scenario D

Scenario E

DD is on trial for murder. The government puts on its case and rests. DD then testifies that she killed VV in self-defense when VV launched an unprovoked and deadly attack on her.

The government then offers to have W-11 testify that Valiant Victim's reputation in the community in which he resided was that of a peaceable and non-violent person.

How should the court rule on DD's objection to this question?

{this requires analysis:

1st: Does evidence that VV attacked first amount to “character evidence” – i.e., has accused offered circumstantial character evidence to show VV’s conduct?

Answer: Strictly speaking, no. If so, the general right of the prosecution to rebut circumstantial character evidence offered by the accused is not triggered.

Hence, some courts at common law would have sustained DD’s objection to the government’s character evidence about the victim.

2d point: But the FRE creates a special rule for homicide cases: when accused has offered evidence that the victim was the aggressor, government can respond with character evidence about the victim. See last portion of FRE 404(a)(2)

n the addition of the proviso perhaps implicitly acknowledges that evidence of aggression is not itself “character evidence”; see Advisory Committee’s Note

End of Scenario E

Scenario F

The government belatedly discovers that VV did not die. The charge against DD is reduced from murder to aggravated assault. The government puts on its case and rests. DD testifies that VV began the fracas and that she hit VV with a knife in self-defense. The government offers to have W-11 testify that Valiant Victim's reputation in the community in which he resided was that of a peaceable and non-violent person.

The trial court sustains the defendant's objection. Please explain the court's ruling.

{the proviso to FRE 404(a)(2) does not apply because this is no longer a homicide case;

MORAL: evidence that suggests that a person’s character is awful or bad (or good) is not necessarily character evidence; much evidence in a trial suggests character traits but this fact alone does not make such evidence character evidence; evidence is potentially-prohibited character evidence only when character ----> conduct}

End of Scenario F

Scenario G

The government belatedly discovers that VV did not die. The charge against DD is reduced from murder to aggravated assault. The government puts on its case and rests. DD testifies that she, DD, mistakenly but reasonably believed that VV was trying to kill her before DD stabbed VV in the heart with machete. The government offers to have W-11 testify that Valiant Victim's reputation in the community in which he resided was that of a peaceable and non-violent person.

The trial court overrules DD's character rule objection. Please explain this ruling.

{the government’s theory, accepted by the court, is that the evidence of VV’s reputation is admissible to show, not VV’s probable conduct, but DD’s belief vel non about the danger presented by VV: if VV had a peaceable reputation, DD probably did not believe that VV was trying to kill DD}

End of Scenario G

Scenario H

Being alive, VV brings a parallel civil action against DD for aggravated battery, seeking compensatory damages for bodily injuries and pain and suffering, and punitive damages. In her answer DD denies the battery and, in the alternative, alleges provocation and self-defense. At the trial DD offers to have W-9 testify to VV's reputation for violence and W-3 to testify to DD's reputation for non-violence.

How should the court rule on the government's objections to these two offers of evidence?

{objection sustained; FRE 404(a)(2) does not apply in civil actions -- AND 404(a) DOES APPLY

· There is an occasional federal judicial dissent from the thesis that 404(a)(2) does not apply in civil actions, and there was also some disagreement about this at common law; some courts, a few, say that where conduct charged in civil action is criminal, defendant can offer character evidence about victim; but at CL the exception in any event often applied only in homicide cases, so no go here at CL}

End of Scenario H

Scenario I

After the government's discovery that VV is alive, VV dies. VV's plans for bringing a civil action for aggravated battery against DD are therefore aborted. However, VV's spouse brings a civil action for wrongful death against DD. At the trial DD testifies that VV initiated the fracas that led to VV's death.

VV's spouse then offers to have W-11 testify that Valiant Victim's reputation in the community in which he resided was that of a peaceable and non-violent person.

How should the court rule on DD's objection?

Issue #1: Does the 404(a)(2) exception apply? {no}

Issue #2: If not, is VV’s reputation admissible on another theory? E.g., that DD could not have had a reasonable belief that VV was attacking him?

The plaintiff's lawyer cross-examines DD after DD testifies that VV was the aggressor and plaintiff's lawyer asks DD if she, DD, was convicted five years ago for the murder of John Jones.

How should the court rule on DD's objection?

{see FRE 609(a)(1) if FRE apply to case}

The court overrules DD's objection and DD answers "no." To her surprise, plaintiff's lawyer is unable to unearth any record of a conviction of DD for the murder of John Jones or any other person. Plaintiff's lawyer concludes her cross-examination of DD and calls W-12 {Wheezer Witness}, who will testify, if allowed, that ten days before his death Valiant Victim told Wheezer,

DD and I were sitting in Joe's bar yesterday and a fight erupted. I saw DD kill John Jones.

DD objects to the evidence as inadmissible hearsay and character evidence.

How should the court rule on these two objections?

Suppose that the trial court sustains DD's objection. Plaintiff’s counsel now offers to have W-12 testify that he and Valiant Victim were visiting DD at DD's home and that as the three of them were watching TV he, W-12, heard VV say to DD:

You know, Della, I saw you kill John Jones. You did it, didn't you?

Please explain why the trial court overrules DD's objection.

•On the hearsay issue, see FRE 801(d)(2)(B).

§ On the character rule issue: evidence offered to show DD’s anger at VV and, thus, to show DD’s motive for killing VV and, thus, the evidence is not “character evidence” at common law or within the meaning of FRE 404(a); cf. 2d sentence of FRE 404(b); the evidence is thus not evidence of anyone’s “disposition” or “character.”

End of Scenario I

David Defendant is the defendant in a criminal case.

He stands accused of killing Valiant Victim at 3:00 p.m. on June 1, 2001.

The government puts on its case and rests.

DD then takes the stand.

DD testifies that he recalls seeing Valiant at 9:00 a.m. on June 1, 2001.

However, DD further testifies that he wandered into Washington Square Park at 9:45 that same morning where he was kicked by a horse. DD testifies that he cannot remember anything else that happened that day.

DD is allowed to speculate that the horse kick produced temporary amnesia, temporary insanity, and the temporary loss of his capacity -- DD's capacity, that is -- to deliberate and reckon.

The prosecutor vigorously cross-examines DD, asking him, among other things, whether or not he has cheated on his taxes, which DD admits he did.

DD then steps down and DD's lawyer calls Wendy Witness to the stand.

Wendy testifies that she has personal knowledge of DD's reputation among his associates for truth and veracity and that his reputation for truth-telling in that quarter is just top-notch.

•Is this evidence admissible? Yes it is. See, e.g., FRE 608(a) (reputation or opinion) & 608(a)(2)(admissible to rehabilitate after attack)

The prosecutor then cross-examines Wendy Witness.

(a) She asks Wendy if it isn't true that she saw DD murder John Jones in 1998.

DD's objection is sustained.

Explain this ruling.

{The evidence is not admissible as circumstantial evidence of DD's murder of VV in 1993. See, e.g., 404(a) & 404(b) 1st sentence. It is also not admissible as a "bad act" to impeach DD as a witness because this is extrinsic evidence of the bad act. See FRE 608(b). Furthermore, if this trial is under the FRE, the court apparently believes that the Michelson rule about the cross-examination of a reputation witness still applies. See subdivision (b) of this question.}

(2) The prosecutor asks WW if she has heard that DD murdered John Jones in 1998.

How should the court rule on this objection?

{This question is proper. This is the right way to impeach a reputation witness. Your authority at common law is Michelson. Your FRE authority is FRE 608(b)(2).}

The objection is overruled and WW answers that she has heard of no such thing.

(3) The prosecutor then asks WW if she [WW] took part in the murder of John Jones in 1998.

DD's objection is overruled.

Please explain this ruling.

•(a) WW's personal knowledge of this specific act is now not barred by the collateral matter rule because ....(?)

•(b) DD might argue that murder is not probative of truthfulness. How do you think this thesis would fare? Consider FRE 609(a)(1). What use could you make of that portion of FRE 609?

•(c) There is, of course, a risk of prejudice to DD but the trial court apparently felt that the probative value of the bad act outweighs the risk of prejudice. How should the trial court assess the risk of prejudice? Should it presume prejudice or should it presume the absence of prejudice? Cf. the balancing scheme in FRE 609(a)(1).

(4) The prosecutor asks WW if she assaulted Valiant Victim in 2000.

WW replies, "No, of course not."

The prosecutor then offers to have Telly Turncoat testify that he saw Wendy Witness batter Valiant Victim's head with an ashtray in 2000.

DD objects.

He argues that the state cannot use extrinsic evidence of WW's bad acts to impeach WW's character for truthfulness; this is, he says, prohibited both by the common law collateral matter rule and by the first sentence of FRE 608(b).

•DD correctly notes that the state is in fact using extrinsic evidence because it is attempting to impeach WW not by WW's own words and testimony, but by the testimony of another witness, Telly Turncoat.

The trial court, however, overrules DD's objection to TT's testimony.

The ruling may be proper.

Explain the court's theory.

Return to the wrongful death action against DD:

DD testifies that VV began the fracas that led to VV's death in 2001 and that she, DD, accidentally killed VV in the course of trying to defend herself.

PP cross-examines DD and asks if it isn't true that (a) on January 1, 1998, some three years before VV's death, DD murdered Yellow Yappy and (b) on February 1, 1998, DD battered HH, her spouse,

DD, of course, objects to these questions.

DD argues that the plaintiff is trying show these prior murders in order to show her propensity toward murder -- her murderous character -- for the purpose of showing that she acted in accordance with that propensity in 2001 when she killed Valiant.

PP argues that the questions are permissible under the first sentence of FRE 608(b).

Who wins this argument?

(a) If the prior murders are offered to impeach DD, one issue is whether murders are probative of truthfulness.

How should this issue be resolved? Is FRE 609(a)(1) relevant? Please explain.

(b) If the prior murders are offered to impeach, a second issue is whether the court should refuse to exercise its discretion in favor of admitting such probative bad acts.

•There is a danger here that is not present when the witness being impeached is not a party -- the danger that the jury will make circumstantial use of the character of the party on the issue of the doing or non-doing of an act in issue; in this situation, the risk that the jury will draw the inference that DD is a murderous person as well as a liar and that she acted in accordance with her murderous propensities by killing Valiant.

•Does 609(a)(1) suggest that the balance should be tilted against admissibility here because the witness is a party?

--No, because ... (?)

(c) Are the prior murders admissible, not only to impeach, but for some other purpose?

Consider this theory:

DD has claimed that the killing was accidental or not deliberate. The prior murders are admissible to negative her claim of accident or lack of intent. There is no violation of the character evidence rule because the prior murders are offered to show, not an act of DD, but something else, his state of mind or intent. See FRE 404(b), 2d sentence.

What do you think of this argument?