Problem 3A – 3B (Rule 404 and the Criminal Case Exceptions)
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Transcript of Problem 3A – 3B (Rule 404 and the Criminal Case Exceptions)
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Problem 3A – 3B(Rule 404 and the
Criminal Case Exceptions)
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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?
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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
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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
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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
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Willy’s Testimony
A year ago, D hit Orville in the knee with a baseball bat.
Pertinent Trait?
Specific Act? Opinion?
Reputation?
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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
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Connie Counselor’s Testimony
D is subject to fits of rage & anger.
Pertinent Trait?
Specific Act? Opinion?
Reputation? Connie
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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.
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I have known D for years and she is a
non-violent and truthful person
Specific Act? Opinion?
Reputation?
Mayor’s Testimony about Doris
Pertinent Trait?
truthfuland
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Disaggregate
DisaggregateDisaggregate
Disaggregate
DisaggregateDisaggregate
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D is not violent
Mayor’s Testimony about Doris
D is truthful
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Mayor’s Testimony about Doris
• Not pertinent trait for killing.
• Is pertinent character trait for credibility
• But witness credibility rules are different
D is truthful
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D is not violent
Mayor’s Testimony about Doris
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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
Forbidden Character Propensity Inference?
Mayor
YesCriminal Case Exception?YesDefendant can offer character evidence first.
Any 405 problem?It’s OK because opinion.
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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
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Prosecutor Now offers Counselor’s Testimony
D is subject to fits of rage & anger.
Connie
D is not violent
Mayor
Earlier Testimony
Now
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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
Forbidden Character Propensity Inference?
Connie Counselor
YesCriminal Case Exception?YesP can rebut w/bad character once D has offered good character.
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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.
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P Now Offers Baseball Bat Testimony
A year ago, D hit Orville in the knee with a baseball bat.
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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
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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?
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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.
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D Offers Mayor’s Testimony About V & W
V& W are known as violent folks who
frequently engage in armed robbery.
Mayor
Specific Act? Opinion?
Reputation?
Pertinent Trait?
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D Offers Mayor’s Testimony About V & W
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
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D Offers Mayor’s Testimony About V & W
Mayor
V is known as a violent
person
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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.
Forbidden Character Propensity Inference?
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
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D Offers Mayor’s Testimony About V & W
Mayor
W is known as a violent
personDoes this
fit under
any
exception
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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.
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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
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Is Wanda a Victim
Is Wanda
a victim?
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Purpose vs.
Language
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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?
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P Offers Rabbi Ralph’s Testimony
V was truthful, timid &
peaceable.
Rabbi Ralph
Specific Act? Opinion?
Reputation?
Pertinent Trait?
Disaggregate
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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
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When is it offered
V was peaceable &
timid
V did not attack first
People who are timid & peaceable are SLL to attack first
Rabbi Ralph
Criminal Case Exception?
Offered in P’s Case in Chief
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When is it offered
V was peaceable &
timid
V did not attack first
People who are timid & peaceable are SLL to attack first
Rabbi Ralph
Criminal Case Exception?
After Mayor’s
“V is violent”
testimony
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When is it offered
V was peaceable &
timid
V did not attack first
People who are timid & peaceable are SLL to attack first
Rabbi Ralph
Criminal Case Exception?
After Doris testifies butD doesn’t
call Marvin
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Problem 3B
Do Problem 3B
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Connie’s Testimony After the Mayor’s
Mayor
V is known as a violent
personD is subject
to fits of rage & anger.
Connie
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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.
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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)
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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.
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Good Character or Civil Cases
D is a safe driver
D was speeding
before wreck
Safe drivers are SLL to speed
Forbidden Character Propensity Inference?
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.
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Negligent Hiring CaseNeed to Show that EE Was Violent
EE is a violent person
EE is a violent person
No Evidentiary Hypothesis Necessary
Connie Counselor
Forbidden Character Propensity Inference?No
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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
EE is a violent person
EE is a violent person
No Evidentiary Hypothesis Necessary
Forbidden Character Propensity Inference?No