Evidence – Class 4

1. Evidence – Class 4 Character evidence – Rules 404(a) & 405

2. REVIEW – SPECIAL RELEVANCY RULES – remember the policy! • 407 – SUBSEQUENT REMEDIAL MEASURES (POLICY: WANT PEOPLE/COMPANIES TO FIX DANGERS WITHOUT FEAR THAT FIXING SOMETHING WILL LATER BE USED AGAINST THEM;

3. Rule 408 • 408 – SETTLEMENT NEGOTIATIONS – Policy: WANT PEOPLE TO ENGAGE IN SETTLEMENT NEGOTIATIONS AND FEEL FREE TO DISCUSS ALL ASPECTS OF THE CASE IN AN EFFORT TO RESOLVE IT – if what is said or the fact that a settlement can later be used against a party will inhibit settlements; EXCEPTION – IF YOU ARE NEGOTIATING WITH THE GOV’T YOU SHOULD KNOW THAT WHAT YOU SAY CAN BE USED AGAINST YOU LATER

4. Review – • Rule 409 – Policy: Want people to be good samaritans and offer to help pay medical bills;

5. Plea negotiations • Rule 410 – Policy: Want plea negotiations to happen; don’t want to make withdrawals of pleas meaningless (think how hard it will be for Larry Craig to get a fair trial even if he w/draws his plea now); don’t want people to be afraid what they say in plea negotiations can later be used against them.

6. REVIEW - 411 • Evidence of insurance is not admissible to prove liability b/c don’t want jury to mis-use this information

7. Character Evidence - • 3 questions are really important: • 1. what is evidence being offered to prove; • 2. who is offering it; and • 3. what form does the evidence take? • The admissibility of the evidence depends on the answer to these questions.

8. Character trait • Character trait – something that describes a person’s nature or disposition (what kind of person someone is) e.g. careful person; aggressive person

9. Actions may lead to inference about a character trait • Sometimes, one can infer a character trait from someone’s actions (e.g. he robbed a bank, he is a criminal-type person or someone who disregards the law)

10. Propensity inference (404 (a)) • Inferring that b/c someone possesses a particular character trait, they acted in accordance with that trait at the time in question (e.g. he has a criminal nature and thus he committed this crime; he is a liar and thus he lied this time; she is a sweet person, thus she would never spread this malicious gossip)

11. Ginter p. 227 • - Facts – This is a civil case by beneficiary of life insur policy v. insur co – plaintiff (widow) is saying pay us the policy – Insur co. defense - we don’t have to pay b/c deceased lied when he completed the policy

12. ginter • what’s the contested evid? • What is the evidence being offered to prove • What’s the issue/holding/reasoning?

13. REVISED RULE • Character evidence for propensity purposes is NEVER allowed in a civil case!

14. Schafer v. Time, Inc. p.230 • Pan Am Flight # 103, Dec. 21, 1988

15. Schafer • Time Magazine story about Flight #103 – discusses David Lovejoy, double agent, who leaked info about team’s travel plans; picture with caption identifying person as Lovejoy; but it was plaintiff Schafer; Schafer sues for libel

16. Schafer • What’s the contested evidence? • What was evidence offered to prove? • What was form of evidence? • Why was that ok/not ok?

17. Query – what makes something an essential element • Why was Schafer’s character an essential element here? (where do you see if something is an essential element and thus puts one’s character in issue?)

18. query • What is the difference in what is allowed in terms of the form of the evidence if one is using character evidence for a propensity inference (i.e. as circumstantial evidence or to prove someone acted in conformity with their character) versus if one is using the evidence to help prove a particular character trait because character is “in issue”

19. Back to Ginter • Why wasn’t Mr. Ginter’s character “in issue” in the case in which the insur. Co claimed it wouldn’t pay b/c he’d committed fraud in filling out the application

20. Where do you find out if character is “in issue”? • How do you know if someone’s character is “in issue” in a case?

21. When is someone’s character in issue? • See p. 233 – • Child custody/termination of parental rights • Negligent hiring/supervision (employee’s character) • Libel/slander (damages and defense of truth)

22. Hypos to re-inforce rules we just learned • In medical negligence suit, defendant doctor wants a nurse to testify, “I know Dr. Jones very well, and in my opinion, she is one of the most careful surgeons I have ever worked with.” Plaintiff – Objection, move to strike! Articulate the plaintiff’s argument

23. Hypo • Civil defamation suit; def said the plaintiff was a thief. Defense is truth. Defendant wants to put on evidence plaintiff has a reputation in the community as doing shady business dealings and swindling old ladies. May he do it?

24. hypo • Same civil defamation suit but defense is:” I never said that plaintiff was a thief. “ May defendant still put on evidence that the plaintiff has a reputation for shady business dealings and swindling old ladies to prove liability? What about to prove damages?

25. hypo • Civil claim for negligence based on reckless driving - plaintiffs want to get in evidence of def’s prior speeding tickets and reckless driving charge to show that he’s the kind of man who is prone to reckless driving- may they do so?

26. hypos • What if case was for negligent entrustment - def gave car keys to driver he knew was unfit driver - now p. wants to get in evid of prior speeding tickets and reckless driving charges. Objection – improper use of character evidence in a civil case! Make the argument as to why the evidence is admissible here.

27. hypos • Kevin Federline wants to get custody of his children. He claims he should be able to do so because Brittany is an unfit mother. He wants to introduce evidence the following evidence, may he do so: • A. Brittany has a reputation for big drinking binges; • B. Brittany has let her child drive in the front seat of a car w/out a car seat?

28. Sometimes you have to “look at the man behind the curtain” • Character evidence may “sneak in” if you’re not careful – you have to look at what evidence is REALLY being offered to prove

29. U.S. v. Williams – p. 234 • Def on trial for participating in an auto theft ring - def claims he didn’t know that the cars he was transporting were stolen (def’s state of mind – did he know cars were stolen and thus he was a middleman or did he not know stolen and thus he was simply an unwitting middleman was a key issue) • What’s the contested evidence?

30. Looking behind the curtain- U.S. v. Williams cont’d • What was the evidence being offered to prove claims the prosecutor? • What was the evidence really being offered to prove claims the defense? • What was the propensity inference argues the defense? • Should the evidence have been admitted? Why/why not? • What’s the rule you get from this case?

31. Discussing char evidence generally - MICHELSON p. 234 • Michelson is great review of basic principles/policy reasons underlying char evid rules. • What is propensity character evidence (e.g. court explains char evid - at the btm of p. 238, court says that the state may not show def’s prior trouble with the law, specific criminal acts, or ill name among his neighbors – why is all this propensity character evidence?) • Rule is that the state can’t put on propensity char evid in its case-in-chief, but defendant can put on character witnesses to testify to his good character – why the distinction btwn what the state/def can do?

32. Why prohibit state from offering propensity character evidence? • Is the prohibition against gov’t putting on propensity char evid b/c the evidence isn’t relevant (see p. 238/239)

33. pertinent • Defendant must put on a character trait that is PERTINENT to the crime charged.

34. Form of character evidence • If def wants to put on evid of his good name to show b/c had good name unlikely to have committed this crime how must he do it - what form must the evid take

35. Form of propensity inference character evidence • If a defendant is putting on evidence of his good character, can he put on evid of all the times he did something good? Why/why not

36. Cross examination of character witness • Once def puts on reputation/opinion propensity character evid, what can the prosecution do when cross examining the char witness? • WHY?

37. Are all specific bad acts now open game for cross examination?

38. Applying the law to Michelson • (FACT of Michelson: Def on trial for bribing a federal agent; def claims it was entrapment) • What is contested evid? • Was this admissible? • What about the fact that it is remote?

39. State the rules regarding presenting character evidence • 1. Who can do it in their case-in-chief? • 2. What form must it be in? • 3. Is it limited in any way (e.g. if someone is charged with embezzlement, may they put on evidence that they are peaceful?) • 4. Once the defendant has put on a character witness, what may the prosecution do (and why)? • 5. Are there any limits on the prosecutor?

40. Re-inforcing the rules • If charge was that defendant assaulted someone (def not testifying) would it be appropriate to have char witness testify that the defendant is an honest man? What if the def were on trial for perjury? • If char witness testified to def’s reputation for honesty, would it be appropriate to ask on cross - did you know the def beat up a man so badly that he sent him to the hospital? Would that cross question be appropriate if the char witness had testified that the def was a peaceful man?

41. query How can the prosecutor rebut evidence of defendant’s good character – name two ways

42. Prosecution’s propensity char witness • If the prosecution puts on a propensity character witness to rebut the defendant’s propensity character witness may the prosecution’s propensity character witness testify, on direct, to specific bad acts of the defendant?

43. US v. Keiser p. 234 • Facts: Kesier (def) shoots Victor Romero - on trial for shooting, defense is he acted in defense of his brother • What is the contested evid: • What is evid being offered to prove

44. Questions from Keiser • May a criminal def offer into evid a pertinent char trait of a victim? • Is fact that Romero a violent man pertinent in this case – why/why not? • When introducing violent nature to show propensity (i.e. had violent nature and thus acted in conformity w/it on day of fight) does it matter if def knew of violent nature before the crime he allegedly committed? • Why was evid excluded here?

45. Twisting Keiser • Change facts - assume that right before the shooting, def saw Romero scream, kick and beat up someone; the def wants to talk about what he saw - what are the two possible reasons he would want to introduce this?

46. Keiser cont’d • Look at last sentence of big paragraph on p. 246 - whether the def knew of victim’s char at time of crime has no bearing on whether victim char evid should come in under 404(a) (2) - turn to neighbor and explain why court said this; • Now explain why def’s knowledge would make a dif if offering it to prove def’s state of mind • What would be the difference in the form of the evid if 404(a)(2) or for state of mind? • REMEMBER – WHAT IS EVID OFFERED TO PROVE and WHAT FORM IS IT IN

47. More twists on char evidence – victim’s character • If the defendant introduces a pertinent character trait of the victim for a propensity purpose, the gov’t can now offer the same trait of the def for a propensity purpose – all this must be done in the form of reputation/opinion char testimony. [e.g. defendant puts on a char witness that the victim has a reputation for being violent; gov’t can put on a char witness testifying that the def has a reputation for being violent – offered to prove who was the first aggressor)

48. More on victim’s char • If defendant offers char trait about the victim; Gov’t can also offer evid that victim had opposite char trait than that offered by def (e.g. def offers evid victim = violent; gov’t can offer evid victim = peaceful)

49. Final twist – victim’s char in homicide cases • Gov’t cannot offer trait of victim in its case in chief regardless of the crime charged; in all trials except homicide cases, gov’t may only offer victim’s char trait in rebuttal to def’s offer of victim’s char trait. BUT, in homicide cases, if def offers evid victim was the first aggressor, gov’t can introduce propensity char evid going toward victim’s reputation for peacefulness. WHY do we have this exception?

50. Hicks p. 249 • Hicks is on trial for first degree murder; in opening, defense counsel implies that victim was a loudmouth, obnoxious cutting type person. Remember, the way trials happen - opening statements then party w/bop puts on its case - in criminal case - who puts on proof first? • What’s contested evid in this case: