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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. Isn’t D’s calling V a “dirty SOB” a PBA under 404?. Any 404 problems?. Dirty SOB Testimony.

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Problem 3A – 3B (Rule 404 and the Criminal Case Exceptions)

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  1. Problem 3A – 3B (Rule 404 and the Criminal Case Exceptions)

  2. Wanda’s Testimony D walked up to V, called V a “dirty SOB,” pulled wrench from purse, & hit V in the head with it. Isn’t D’s calling V a “dirty SOB” a PBA under 404? Any 404 problems?

  3. Dirty SOB Testimony Forbidden Character Propensity Inference Folks who call others SOB’s are SML to be violent folks Folks who are violent are SML to kill others D called V a “dirty SOB” D has a violent character D killed V Intermediate Fact Wanda

  4. Alternative Inference No! Not a Character Inference Forbidden Character Propensity Inference?? One who calls X a “dirty SOB” is SML to be angry at X One who is angry at X is SML to kill X D called V a “dirty SOB” D was angry at V D killed V Not a Character Trait Intermediate Fact Wanda

  5. 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

  6. Willy’s Testimony A year ago, D hit Orville in the knee with a baseball bat. Specific Act? Opinion? Reputation? Pertinent Trait?

  7. Yes Willy’s Baseball Bat Testimony No Criminal Case Exception? Forbidden Character Propensity Inference? Prosecutor can’t attack first Can’t Use Specific Acts What Rule? ________ Folks who hit others w/ bats are SML to be violent people People who are violent are SML to kill 1 yr ago, D hit O with BB bat D is a violent person D killed V Any other problem? 405

  8. Connie Counselor’s Testimony D is subject to fits of rage & anger. Specific Act? Opinion? Reputation? Pertinent Trait? Connie

  9. Forbidden Character Propensity Inference? Yes Criminal Case Exception? No Prosecutor can’t attack first. Connie’s “Rage & Anger” Testimony People who are subject to fits of rage & anger are SML to kill D subject to fits of rage & anger D killed V Connie Counselor

  10. Mayor’s Testimony about Doris and truthful I have known D for years and she is a non-violent andtruthful person Specific Act? Opinion? Reputation? Pertinent Trait?

  11. Disaggregate Disaggregate Disaggregate Disaggregate Disaggregate Disaggregate

  12. Mayor’s Testimony about Doris D is truthful D is not violent

  13. Mayor’s Testimony about Doris D is truthful • Not pertinent trait for killing. • Is pertinent character trait for credibility • But witness credibility rules are different

  14. Mayor’s Testimony about Doris D is not violent

  15. Yes Forbidden Character Propensity Inference? Yes Criminal Case Exception? Defendant can offer character evidence first. Mayor’s testimony: D is non-violent It’s OK because opinion. People who are non-violent are somewhat less likely (SLL) to kill D is completely non-violent D did not kill V Any 405 problem? Mayor

  16. 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

  17. Prosecutor Now offers Counselor’s Testimony D is subject to fits of rage & anger. Connie Now Earlier Testimony D is not violent Mayor

  18. Forbidden Character Propensity Inference? Yes Criminal Case Exception? Yes P can rebut w/bad character once D has offered good character. Counselor’s Testimony in Rebuttal People who are subject to fits of rage & anger are SML to kill D subject to fits of rage & anger D killed V Connie Counselor

  19. 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.

  20. P Now Offers Baseball Bat Testimony A year ago, D hit Orville in the knee with a baseball bat.

  21. Yes Baseball Bat Testimony as Rebuttal Prosecution can rebut because D has opened door (offered good character) Yes Criminal Case Exception? Forbidden Character Propensity Inference? Still Can’t Use Specific Acts Don’t forget rule ________ Folks who hit others w/ bats are SML to be violent people People who are violent are SML to kill 1 yr ago, D hit O with BB bat D is a violent person D killed V Any other problem? 405

  22. 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?

  23. 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.

  24. D Offers Mayor’s Testimony About V & W V& W are known as violent folks who frequently engage in armed robbery. Specific Act? Opinion? Reputation? Pertinent Trait? Mayor

  25. D Offers Mayor’s Testimony About V & W V is known as a violent person W is known as a violent person V is known to rob W is known to rob Mayor

  26. D Offers Mayor’s Testimony About V & W V is known as a violent person Mayor

  27. Yes Forbidden Character Propensity Inference? Yes Criminal Case Exception? Defendant can offer victim’s character evidence first. Second Mercy Rule Mayor: V is known to be violent It’s OK because reputation. If most folks think X is true, it is SML that it is true. People who are violent are SML to attack first. V is a violent person Most folks believe V is a violent person V attacked first Any 405 problem? Mayor

  28. D Offers Mayor’s Testimony About V & W W is known as a violent person Does this fit under any exception Mayor

  29. 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.

  30. 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

  31. Is Wanda a Victim Is Wanda a victim?

  32. Purpose vs. Language

  33. Mayor: “They frequently rob.” • Is this different? • Is it a character trait? • If so, is it a pertinent trait? V is known to rob W is known to rob Mayor

  34. P Offers Rabbi Ralph’s Testimony Disaggregate V was truthful, timid & peaceable. Specific Act? Opinion? Reputation? Pertinent Trait? Rabbi Ralph

  35. Forbidden Character Propensity Inference? Yes Criminal Case Exception? Depends on when P offers it. Rabbi: V timid & peaceable. People who are timid & peaceable are SLL to attack first V was peaceable & timid V did not attack first Rabbi Ralph

  36. Criminal Case Exception? When is it offered People who are timid & peaceable are SLL to attack first V was peaceable & timid V did not attack first Offered in P’s Case in Chief Rabbi Ralph

  37. Criminal Case Exception? When is it offered People who are timid & peaceable are SLL to attack first After Mayor’s “V is violent” testimony V was peaceable & timid V did not attack first Rabbi Ralph

  38. Criminal Case Exception? When is it offered People who are timid & peaceable are SLL to attack first After Doris testifies but D doesn’t call Marvin V was peaceable & timid V did not attack first Rabbi Ralph

  39. Problem 3B Do Problem 3B

  40. Connie’s Testimony After the Mayor’s Connie V is known as a violent person D is subject to fits of rage & anger. Mayor

  41. 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.

  42. The New Rebuttal Rule If D has offered evidence of V’s bad character, P may rebut with evidence of D’s bad character. (Must be same trait)

  43. 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.

  44. Forbidden Character Propensity Inference? 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. Good Character or Civil Cases But the criminal case exceptions do not. Safe drivers are SLL to speed D was speeding before wreck D is a safe driver Someone who often sees D driving

  45. Forbidden Character Propensity Inference? Negligent Hiring CaseNeed to Show that EE Was Violent No No Evidentiary Hypothesis Necessary EE is a violent person EE is a violent person Connie Counselor

  46. Forbidden Character Propensity Inference? Another Negligent Hiring Case: Need to Show EE was Violent Person No Folks who hammer others are SML to be violent people No Evidentiary Hypothesis Necessary EE hit Jim in the head w/hammer EE is a violent person EE is a violent person

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