EVIDENCE NOTES9

Chapter 5: Character & Habit Evidence I. USES for CHARACTER EVIDENCE: a. Propensity—because someone has a particular trait or character, they have a propensity to act in a certain way and this is why they acted on this occasion i. E.g.—establish trait of character of dishonest…can infer that he has a propensity to act in dishonest ways and more likely than not that defrauded on this occasion ii. Propensity offered to show individual acted this way on occasion b. Character is in issue—negligent entrustment when Chase gave car to teenager who is notoriously bad driver i. Teenager‟s character for driving is issue in case [MUST be established] ii. NOT talking about propensity, but actually showing that this is a bad driver and anyone that gave a car to this person is negligent c. Specific Use (404(6))—offering specific instance of past conduct for purpose other than to prove propensity i. E.g.—bank robber robs bank in specific way [wearing pink underwear] and have another bank robbery in same way = can use past conduct to prove that he was bank robber ii. Other than propensity to act in particular way d. Impeachment [discuss later 608-09]—be aware that character evidence can be used to impeach witnesses, but will be set aside CHARACTER EVIDENCE: a. 404: Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes: i. (a) Character Evidence Generally.--Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: 1. (1) Character of Accused.--Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; 2. (2) Character of Alleged Victim.--Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; 3. (3) Character of Witness.--Evidence of the character of a witness, as provided in rules 607, 608, and 609 i. (b) Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. b. NO propensity character evidence = can NOT be offered evidence of character or trait of character that acted on specific occasion i. Afraid that jury will convict for wrong reason (violent; dishonest) ii. Jury will overvalue by considering that is hwy they acted on this specific occasion iii. Should be defending their acts, NOT their character iv. People change, just because violent as youth, doesn‟t mean that violent at 50 years old c. What is character evidence?? i. Specific traits of character—distinct aspects of one‟s personality [honest v. dishonest; violent v. peaceable] ii. Types: 1. Reputation 2. Opinion 3. Specific Acts d. Propensity Evidence—using evidence of a person‟s character traits to prove that it is more likely that he acted this way on this occasion i. E.g.—evidence that the person is violentlikely that he is violent towards others and relevant to show that he was violent on this occasion ii. 404(a)—language sets up a barwill NOT admit evidence of a person‟s character to prove that they had a propensity to act this way and acted this way on a particular occasion 1. Exceptions: a. ONLY admissible in criminal cases [NOT admissible in civil cases!!] b. Prosecution can NEVER use character evidence UNLESS the D has done something to open the door [D can put his character out there, and then prosecution can rebut it] i. If prosecutor offering character witness in prosecution‟s case in chief = WRONG!! II. e. f. g. ii. Occasionally on cross-examination, prosecution can get into character evidence Accused can offer propensity of his own state of character [E.g.—D can offer evidence in form of witness that he is a peaceable personprosecution can then offer testimony that D is violent person] d. If accused offers evidence of victim‟s character: i. If D offers in case in chief that victim is violent person [404(a)(2)] ii. Prosecution can rebut in 2 ways: 1. Call into evidence that victim is NON-violent (defendant‟s trait of character is different) [404(a)(1)] 2. If D offers evidence that victim is violent, prosecution can offer evidence that D is violent [404(a)(1)] 2. MUST be a pertinent trait of character—logically bears upon that D was likely to commit act that was alleged a. E.g.—embezzlement: honesty is trait of character, but violence is NOT b. Defense has to be pertinent to bring it in 3. Exception (1): Permits a D to offer a pertinent trait of character or by Prosecutor if D has 1st opened the door a. Once D calls character to show what peaceable non-violent character he is…but opens the door to where the prosecution can now offer trait of evidence as violent b. If D offers evidence that victim was violent, then prosecutor can offer evidence that D was violent too [D opened the door!!] c. D offers character evidence: i. Of himself/herself ii. Of victim of crime iii. BOTH open door to prosecution for offering same TYPE of character… What TYPE of evidence is permitted: i. RULE: Limited to reputation/opinion with respect to pertinent character evidence on direct 1. E.g.—D is violent person so likely to commit act alleged a. Can testify that knows reputation in community and it is one for violence b. Character witness can testify as to his own opinionwitness knows D and has opinion that witness is very violent person c. ONLY forms of permissible character evidence on direct examination [NO specific acts!!] i. Actstraitparticular acts ii. Too attenuated…hanging too much on something that attenuated 2. ON cross-examination can be asked about reputation/opinion/specific acts a. E.g.—D puts on character evidence that he is non-violent person = opinion evidence i. Prosecution cross examines and asks are you aware that he has twice sent his wife to hospital with broken ribs ii. Lose-lose situation: 1. If witness says he was NOT aware = opinion is worthless because he really doesn‟t know him 2. If witness says he was aware = opinion is STILL worthless because he is NOT non-violent if hurt his wife twice b. Mercy-Rule can be damaging because opens the door for testimony of ANY prior acts that are opposite to trait ii. Character itself in issue—allows reputation/opinion/specific acts Cal. § 1103: i. When D is offering character of victimNOT limited to reputation/opinion…can offer evidence of specific acts!! ii. Allows prosecution to offer evidence of D‟s trait of characterspecific acts/reputation/opinion ANALYSIS: i. What kind of case?? 1. Criminal—admissible 2. Civil—NOT ii. Who is offering?? 1. Has D opened the door to character evidence 2. If D opens door, prosecution can rebut iii. When are they offering?? 1. Direct examination—limited to reputation/opinion 2. Cross examination—reputation/opinion/specific acts iv. Is it is correct form?? Opinion/Reputation/Specific Act c. h. v. Is it a pertinent character trait?? Problems: i. 5-1: Rambo collects exotic weapons as hobby; participates in body-building competitions; loves the film Natural Born Killers, was profession wrestler for several years…at 3 am R was involved in brawl outside bar 1. R sued for assault and battery by B, person injured in fight, can B introduce evidence of R‟s hobby, bodybuilding activities or prior employmentNOT admissible, using character to show propensity to act in specific occasion can NEVER be offered in civil case…another problem is that it is NOT reputation/opinion evidence [required for direct] and D didn‟t open door 2. R prosecuted for assault, can prosecution offer evidence of R‟s hobby, bodybuilding or prior employmentNOT admissible, in absence of D opening the door, prosecution can‟t offer [prosecution can‟t offer evidence of propensity character evidence in their case-inchief]….another problem is that it is NOT reputation/opinion [required for direct] 3. R‟s business partner, M, testifies for defense if he states that for the past 5 years R has been responsible attorney and that R has a very meek personality: a. Responsible attorney does NOT suggest pertinent character trait = NOT admissible b. Meekness admissible as opinion evidence on direct examination offered by D in criminal case 4. R‟s mother testify that R has reputation in community for being very peaceful, so peaceful that he refused to fights others on at least 8 separate occasions when challenged a. Mother can testify as to reputation in community i. RULE: Foundational issues that… 1. She is aware of his reputation 2. Must define community (school, workplace) 3. She was personal knowledge of community ii. D opening the door b. RULE: Can NOT testify to prior acts or prior NON-acts i. NOT particularly relevant…fact that did not fight 8 times, does NOT mean that they are peaceable person ii. Different from reputation/opinion 5. R‟s mother testifies, can prosecution ask her on cross whether she heard R was arrested for attempted murder 6 years ago a. RULE: Witness can be questioned about specific acts because used to attack the basis of the opinion i. Specific acts allowed on cross examination (NOT direct) ii. If she had NOT heard = suggests that she doesn‟t have a good basis for her opinion b. Can she be questioned about the arrest if attempted murder charges eventually droppedwhether he is arrested for murder likely affects reputation in community, will still affect reputation even if later dropped, therefore still admissible 6. R‟s mother testifies, can prosecution call R‟s former music teacher in rebuttal to testify that R has reputation in community as violent individualYES, can call witness to testify that R has reputation for being violent [criminal; D opened door; direct; limited to reputation/opinion; pertinent character trait to rebut] ii. 5-2: Farmer S brought suit against J for running over and killing her cow…J counterclaimed, that S inadequately supervised her cows and negligently allowed them to escape…at trial S called another farmer to testify that in his expert opinion, cows have propensity to wander…opinion inadmissible character evidenceNO, admissible because cow is NOT a person…RULES of EVIDENCE do NOT apply to animal behavior iii. 5-3: Cars driven by JJ and BF collided at intersection…JJ charged with reckless driving 1. Can prosecution offer evidence that JJ had been in alcohol treatment program the previous yearNO, prosecution is trying to sneak it in 1st [NOT allowed in prosecution‟s case-in-chief] + wrong form [limited to reputation/opinion…this is a specific act] 2. Can JJ testify, “I am a terrific driver, better than Petty, Ernhardt, Elliot or the rest”allowed to testify to own character, but „terrific driver‟ is NOT necessarily a pertinent character trait a. Good; terrific = too NON-specific to be considered character trait b. Terrific is NOT really a trait, just a broad character admission 3. Can JJ say, „Just look at my driving record; NO blemishes whatsoever!‟Referring to totality of specific acts [clearly NOT reputation, NOT opinion]will NOT be allowed on DIRECT EXAMINATION!! iv. 5-4: Heavyweight champion of world, the Champ, sued contender, CC, for assault and battery…Champ claimed CC accosted him outside club at 4 am one morning…which admissible?? v. vi. vii. viii. ix. x. Champ offers to testify that CC started 2 other bar fights earlier that week: a. NOT admissible because CIVIL case b. If it were CRIMINAL i. D has NOT opened the door ii. NOT admissible because wrong form for direct too [specific act] 2. Champ wishes to testify that CC has reputation for being violent, particularly when drinking a. NOT admissible because CIVIL case b. If it were CRIMINAL i. D has NOT opened the door ii. However it is the right form [reputation evidence] 3. CC intends to testify that he has never been in a fight outside the ring prior to this occasion a. NOT admissible in CIVIL case b. If CRIMINAL casebecause DIRECT examination NOT admissible as a specific act [or NON-act]…only allows reputation/opinion 4. CC offers to testify that Champ has been involved in numerous other fights outside the ring and in CC‟s opinion has a bad tempter a. NOT admissible in CIVIL case b. If CRIMINAL case: i. Can offer statement about having a bad temper [OPINION allowed on direct examination] ii. But specific act will NOT come in [direct examination] iii. HOWEVER, if in California could get ALL in!! 5-5: I, Me, Mi prosecuted for conspiracy to obstruct justice in a probe of the trucking industry…at trial, prosecutor asks undercover officer who infiltrated conspiracy what is his opinion of Me and officer responded that he is kind of person who would obstruct justice in a moment‟s noticeNOT admissible…Problems: 1. Trait is he „obstructs justice‟ = UNLIKELY to be a character trait!! 2. Opinion being offered by prosecution [D must open the door] 5-6: Defendant T charged with possession with intent to distribute heroin…in D‟s case-in-chief, D‟s mother will testify that D has a fine reputation in community for truthfulnessCriminal; RIGHT PARTY [D offering]; RIGHT FORM [reputation]…but WRONG character trait [truthfulness is NOT pertinent character trait for distributing heroin] 5-7: F charged with killing her H while he slept…asserts defense of battered woman syndrome…claims that she reasonably believed she had no other alternative but to kill him, she perceived serious harm was imminent…at trial, F‟s sister, P, testifies on F‟s behalf and makes statementsD offering…RIGHT party in criminal case [regarding the victim] 1. „I observed H beat up his 1st W, the one before F, so badly she was taken to hospital‟NOT admissible because it was a specific act [wrong form for direct] 2. „Based on what I saw of him I firmly believe H was a violent man‟Admissible as opinion on direct examination 5-8: D, P, charged with bribery…in D‟s case-in-chief, teacher testifies that, in his opinion, P has high moral character for honesty 1. Admissiblebribery is dishonest act, therefore pertinent character trait = being offered by D in criminal case 2. In same bribery case, prosecution offers in rebuttal a witness who will testify that: a. P‟s reputation in community is one of dishonestymeeting the charge and meeting the same character trait…therefore ADMISSIBLE b. P had stolen 3 hubcaps from car year beforeallowed to cross-examine the D‟s witness and bring in specific acts, but NOT admissible to call another witness = NOT admissible because WRONG form [NO specific acts on direct examination] 5-9: In homicide prosecution, D, PW, offers evidence indicating that victim, G, began the scuffle that led to G‟s death by gunshot…in rebuttal prosecution offers a reputation witness to testify that G was known in the community as a peaceful person 1. 404(a)(2): Homicide case; D offers ANY evidence that victim was 1st aggressor [can be eyewitness]prosecution can NOW rebut with character evidence that victim was peaceful 2. Requires it be a Homicide Case [victim is NOT there…limited to character trait of peacefulness of victim] = RULE of necessity 5-10: D, MC, prosecuted for check forgery…prosecution‟s 1st witness, A, recounts events in question…then exclaims, „that MC fellow has a reputation in this community for being a liar‟ 1. Testimony NOT admissibleprosecution can NOT offer evidence of D‟s character in case-inchief 1. III. M‟s good friend is 1st witness for defense…testifies that M‟s reputation is one of peacefulness and truthfulnesspeacefulness is NOT a pertinent character trait, but truthfulness is admissible [criminal; D offers; reputation; pertinent] 3. On cross, friend is asked whether he has heard that M had been arrested for attempted embezzlement from American Express the previous yeartends to rebut/impeach validity of witness‟ testimony = admissible [specific act allowed on cross examination] 4. Can prosecution cross friend about M‟s purported embezzlement if prosecution has NO concrete knowledge about embezzlement, but instead bases its questions on rumorscan ask anything on cross-examination as long as you have a good-faith basis for doing so…here, highly prejudicial = NOT admissible 5. In rebuttal, government offers new witness to testify that D, M, had been arrested for embezzlement 3 years earlier, and witness, friend, had been indicted for perjury only 2 months before trialNEW witness, therefore now direct examination = WRONG FORM [rebut something in D‟s case-in-chief, but limited to reputation/opinion]…specific acts NOT allowed; perjury is impermissible impeachment evidence [cover later] xi. 5-11: Shortly after convenience store opened, it was robbed by white male…description of perpetrator indicted he was 5‟ 10”, wore a beard, denim jacket, blue jeans, and sneakers and held what looked like hunting knife 1. Prosecution attempts to introduce evidence that D has robbed 2 other convenience stores within past yearNOT admissible = prosecution can NOT offer + wrong form [specific act on direct] 2. Can prosecution introduce evidence that man answering D‟s description seen robbing nearby WalMart 2 hours later same dayProblem is that it is NOT relevant [whether this D robbed this store…NOT whether someone looking like this D robbed another store] = basic relevancy issue xii. Case: Michelson v. US (U.S. 1948)—D convicted of bribing federal revenue agentD admitted to passing money, but claimed it was in response to agent‟s demands, threats, solicitations, and inducements [should jury believe agent or accused] 1. D called witnesses to testify regarding his good reputationprosecution then asks witnesses if they had heard of D‟s 20 year old trademark law violation and if they were aware he was arrested for receiving stolen goods 2. RULE: Arrest does NOT impeach integrity/credibility of witnessONLY a conviction may be inquired to undermine the trustworthiness of a witness…BUT inquiry as to an arrest is permissible to test the qualifications of a witness to bespeak the community opinion or reputation METHODS of PROVING CHARACTER: Character in Issue a. 405: Methods of Proving Character: i. (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. ii. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. b. Character is almost NEVER issue in criminal cases [ONLY civil cases] i. Crime of seduction…when previously chaste—VERY rare to prosecute ii. Entrapment: 1. Objective—reasonable person [character NOT issue] 2. Subjective—depends if D has predisposition to criminal activity [D‟s character is an issue] c. Civil Cases: i. Child Custody ii. Negligent Entrustment iii. Negligent Retention/Hiring iv. Defamation d. Form of evidence considered: i. 404—ONLY in criminal + reputation/opinion on direct AND reputation/opinion/specific acts on cross examination…propensity evidence is generally inadmissible [NOT admissible in CIVIL] ii. 405—can use reputation/opinion (a) and specific acts (b); criminal or civil e. Problems: i. 5-12: JR known as „one-man terrorist gang‟…burned down town hall, shot 3 people, participated in 24 bar fights…P, owner of grocery store, hired R to serve as security guard and gave him low-caliber pistol to carry on duty…5th day on job, R got in fight and shot customer and customer brought suit against P claiming negligent hiring…P‟s first witness is mayor of town to testify that in his opinion R is dangerous and recount all prior incidents involving R‟s harmful behaviorNegligent Hiring…ALL would come in [opinion and specific acts] because character is in issue [employee] and employer is charged with negligent hiring 2. IV. ii. 5-13: Slander action, J, businesswoman, allegedly called commissioner of baseball a „lazy nerd‟ after denied a major league baseball franchise…Defamation: 1. Commissioner offers testimony that he worked past midnight on 18 occasionsworking past midnight tends to show whether industrious person v. lazy person and specific acts can be used to show type of character [405] and more likely that character damaged by defamatory comment 2. Commissioner offers testimony that he has a reputation in baseball for being very industriousreputation would be admissible because it tends to prove character that he is NOT lazy, therefore admissible [405] 3. Commissioner offers evidence that he is a peaceful, non-violent personviolence and peacefulness are NOT pertinent character traits…therefore NOT relevant 4. J offers testimony of PP, former commissioner, who states that in his opinion, commissioner was „lazy‟fact that he is lazy, bears in fact that he is lazy person [helps defense…tends to minimize damage], admissible [tends to show that character has NOT been damaged, defense of truth] 5. J offers evidence that commissioner has reputation among major league baseball owners for being nerdTruth is defense and tends to show character has NOT been damaged iii. 5-14: D, L, charged with possession with intent to distribute cocaine after government sting operation…L admits to possessing cocaine, but claims he was entrapped by undercover cop…jurisdiction uses subjective test of entrapment [(1) whether police induced/created the crime and (2) whether D was predisposed to committing crime charged]Entrapment Defense—subjective test [whether D was predisposed to committing the crime charged] 1. Testimony by L‟s father stating his son would never violate criminal laws…to father‟s knowledge, son had violated law only once, when as a child stole ball from local storeSubjective test…if he is law-abiding person bears upon predisposition to break law in general…father can testify to his opinion and specific act 2. L‟s brother testifies that in his opinion, L is extremely honestopinion that honest could prove character that NOT predisposed to committing crime and would be admissible under 405 3. Prosecution offers evidence that L was arrested for possession of marijuana 15 years prior to trialtends to show that he breaks the law…relevant to know amount [small quantity of marijuana v. large quantity of cocaine]…prosecution has stronger case given that he will violate the law; but defense could argue that it is HIGHLY misleading [difference in offenses] and excludable on 403 grounds CHARACTER EVIDENCE—OTHER ACTS (404(b): a. 404: Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes i. (b) Other Crimes, Wrongs, or Acts—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. b. 404(b): Certain acts are NOT admissible as propensity, but may find themselves in trial in another capacity i. Propensity v. ii. Use a prior act/crime to prove 1. Motive 2. Opportunity 3. Intent 4. Preparation 5. Plan 6. Knowledge 7. Identity 8. Absence of mistake or accident iii. Even though forbids propensity…in minds of jury it may still go to propensity [403: probative value is substantially outweighed by unfair prejudice; danger of misleading the jury; confusing the issues] 1. Prior act of D behaving violently…rather than using as propensity for violencecould use as a motive to behave violently toward victim, therefore more likely to have killed victim on this occasion 2. Signature Crimes: L charged with stealing co-worker‟s wallet from desk drawer…thief left photo of wallet in place of stolen walletprosecution offers evidence that L previously stole blouse in department store leaving photo in its place a. Admissible for non-character purpose of showing IDENTITY, but NOT to show propensity to be a thief b. Admissible to show identity because theft of blouse had unique or „signature‟ quality that indicates L‟s modus operandiNOT to show that because stole on prior occasion, she is 3. thief, and therefore more likely to have acted as a thief on this occasion and stolen wallet as well c. NOTE danger—running risk that jury will misuse evidence as propensity evidence…because D has stolen in past, more likely that D is a thief = what is probative value of evidence + it is NOT substantially outweighed by danger of prejudice Can be AFTER alleged conduct [subsequent to crime charged] = if it is before trial a. Can be used in CIVIL and CRIMINAL trials b. Defense can request a limiting instructionbut problem is that it draws more attention to arrest [limiting instructions are generally ineffective] c. Problems: i. 5-15: D, C, charged with distribution of cocaine and PCP…prosecution offers evidence in case-in-chief of baggies, scales and other narcotics paraphernalia found in D‟s home 4 days after arrestDefense should argue that it is NOT clear when held in custody [could belong to someone else], however probative to show that he has the equipment that is commonly used for distribution of narcotics 1. How could this be propensity evidence? Propensity to distribute drugs, and likely to distribute drugs on this occasion = NOT allowed!! 2. However, this is kind of evidence that shows more of a plan/scheme to engage in distribution of narcotics, therefore permissible under 404(b) and 403 unlikely to succeed in this case ii. 5-16: D, C, charged with extortion…4 days after charges filed, D attempted to kill alleged victim of extortion scheme by poisoning his dinner…survived to testifyattempt to poison is relevant because it shows that extortion charge gives MOTIVE to kill this guy [when try to kill prime witness against you, makes you look guilty = probative of guilt] 1. Admissible under 404(b) because attempted murder does NOT show propensity to commit extortion 2. 403—more likely guilty, therefore extremely probative and NOT substantially outweighed by dangers iii. 5-17: Uncle L charged with molesting 10 year old girl…L allegedly molested gift in car after promising to take her to see black and white bunny…at trial, government offers evidence of 2 prior allegations of child abuse against L where both involved L molesting young girls after inviting them into his car to see black and whit bunnyquestion is whether it was Uncle L who did it…using as identity 404(b) 1. Problems—jury confusing the issues a. 2 prior allegations involving black and white bunnies b. ONLY allegations…if conviction wouldn‟t be problem 2. Standard of Proof—Huddleston v. US (1988) similar act evidence [offer to sell TV $28 and offer to sell large quantity of appliances] used against one accused of selling and possessing items of interstate commercesuch evidence should be admitted if there is sufficient evidence to support a finding by the jury that the D committed the similar act a. Conditional Relevancy—we don‟t know for sure who committed the act… b. Jury must consider if it was Uncle L involved in first 2 allegations…judge has to determine whether there is sufficient evidence to support a jury‟s conclusion that Uncle L had molested 2 other girls by a preponderance of evidence c. If judge decides preponderance of evidence is metthen jury instructed if they decide by P of E, they can consider as if it was him who was the one who molested the child in this case 3. Problems: a. Conclude if he did 1st 2 acts by preponderance of evidence [over 50%]if you do, then it is powerful evidence regarding the 3rd attack b. Conditional relevancy is confusing for the jury = 403: probative value is likely outweighed by danger of unfair prejudice, misleading the jury, and confusing the issues 4. Example of modus operandi using as proof of identity, but problems with foundations that will likely exclude it iv. 5-18: D prosecuted for robbery…asserted defense of duress, D claimed brother-in-law coerced him into participating in robbery by threatening to kill his sister if he didn‟t stank look-out…D claimed „He made me do it!‟…in rebuttal, prosecution offers evidence that R committed several other prior robberies without his brother-in-law‟s participationfocusing on INTENT [property for 404(b), while propensity is NOT] 1. Defense is duress…I wouldn‟t have done it unless he forced me a. If can show pre-existing INTENT to commit a particular kind of crime, it can devalue the duress defense b. Defense atty. should argue that really using for propensity and danger of jury misusing, but prosecutor has winning argument…by D raising defense of duress, it makes issue of D‟s inclination an issue v. vi. vii. viii. ix. x. Had D NOT raised defense of duress, it would be at issue [NOT admissible because propensity]but here, does he have inclination to be involved in this type of activity, it is less likely that he was under duress and committed the crime voluntarily 3. NOT likely going to come in prosecutor‟s case in chief to prove INTENT!! a. ONLY proper where D has raised a defense which more narrowly focuses on whether D had pre-existing INTENT b. E.g.—duress or entrapment! 5-19: D, S, charged with bank robbery…asserted defense of duress, claiming other participants coerced her into committing robbery…prosecution offers evidence at trial of other criminal activity in which D participatedDuress = INTENT [greatest danger of propensity…wait until defense makes intent relevant] 1. Within month of robbery, participant apprehended for alleged shoplifting and D [S] fired rifle which permitted him to escapeRelevant to show that she was NOT forced to act, rather she was acting voluntarily…why should she assist her captors, rather than assisting police = admissible under 404(b) 2. Participants kidnapped 3rd party and D did not attempt to assist victim or escape herself, even though she had apparent opportunity to do soRelevant because fact that she did NOT escape tends to undermine defense of duress by showing that she had opportunity and didn‟t take it, therefore MUST be willing participant 3. NOT admissible in prosecution‟s case-in-chief, but because of defense of duress it is admissible under OTHER ACTS 404(b), and highly probative under 403 [inadmissible for propensity…always a bad purpose!!] 5-20: D, A, has AIDS…after biting FBI agent, she is charged with attempted murder, prosecution wants to offer evidence that FBI agent had arrested D on 3 prior occasionsrelevant because goes to MOTIVE…motive is NOT an essential element of offense, but can be used to show a person intentionally acted with a bad purpose [as opposed to accidental bite]…example of evidence that could come in prosecution’s case and chief, fact that he arrested her does NOT say anything about propensity, but danger that arrested 3X, therefore danger of interpreting as propensity = if trying to show intended to inflict harm, showing MOTIVE [404(b)] 5-21: VP, college student charged with possession of marijuana…V testified that he did NOT know what marijuana looked like and was surprised when police found…in rebuttal, prosecutor offers evidence that D had been charged with possession of marijuana on 2 prior occasions (both dropped due to insufficient evidence)Relevant because if know that he was been arrested for marijuana in past, then knows what marijuana is…double-trying problem: 1. Defense argues—prosecutors will try anything, if P dropped then it means that there was NOT even probable causelack of support for underlying premise 2. There is NOT enough evidence for jury finding by preponderance of evidence that he possessed marijuana in past 3. However, if 2 prior convictions [found beyond a reasonable doubt]would undercut defense that he didn‟t know what it was 5-22: M‟s wife, S, died in Jacuzzi and M charged with her murder…M claims at trial death was accidental…in rebuttal, prosecution offers evidence that 2 of D‟s 3 previous wives died on unknown and allegedly accidental causes in Jacuzzi as well 1. Admissible under 404(b) to show absence of accident [NOT propensity to kill] a. Relevant to absence of accident b. If offered in prosecution‟s case-in-chief = looks like propensity evidence, but once he said it is a horrible accidentit is unlikely to occur 3X to same guy 2. Doctrine of Chances—theory that evidence is offered to show that the occurrence of other events diminishes the probability that the event is question occurred by chance…what is the chance this is going to happen 3X 3. M charged only with death of 1st W, who also died in hot but, subsequent deaths of other wives can still be relevant and admissible as OTHER ACTS even if after act in question, but BEFORE trial 5-23: 4 people form group „Procrastinate Now!‟ accused of blowing up McD‟s with dynamite…anonymous announcement claimed act intended to be gesture against capitalism…at trial, prosecution introduces evidence that D been observed stealing 10 sticks of dynamite and several blasting caps 1 week prior to explosionadmissible under 404(b) to show PLAN & PREPARATION, likely to be admitted in prosecution‟s case-in-chief 1. Offer to possibly show identity [MUCH weaker inferences] 2. Could show opportunity 5-24: S brings suit against former H, G, seeking damages for sexual abuse of daughter, M…at trial, S offers expert to testify that G‟s child from another marriage was also sexually abused by himcase where it was allowed to use to counter the defense that child was making up story 2. d. e. Danger of use SHOULD lead to 403 exclusion = HIGH danger of misuse/prejudice by jury [looks like pure propensity]without knowing nature of defense attack [child making it up], it is PURE PROPENSITY [excluded] 2. D was attacking credibility of child [claiming child made it up] = evidence admitted by court that child wasn‟t making it up because it had happened to another one of guy‟s kids xi. 5-25: D, J, charged with selling cocaine to undercover cop…trial, prosecution offers testimony of cop 1. Prosecution asks what happened 9 months after cocaine sale at issue in case…response that 9 months after sold me cocaine, observed selling cocaine to another officerPROPENSITY, therefore NOT admissible…can NOT imagine another use other than pure propensity in prosecution‟s case in chief 2. Significant if pending felony case or relevant if there had been a conviction for sale to other officerStill propensity, therefore excluded!! 3. If „other act‟ sale to other officer admitted at trial pursuant to 404(b), would it be proper for trial judge to explain purpose of such evidence to jury by repeating rule and would instruction constitute reversible errorif admitted D could request a limiting instruction, judge just reading 404(b) is NOT sufficient limiting instruction…judge must INSTRUCT jury to disregard the propensity use x. 5-26: MM, attorney at law, prosecuted for filing a false statement with Securities and exchange Commission on behalf of local bank…defends suit by claiming he mistakenly filed the erroneous statements a. Rebuttal, can prosecutor introduce other false statements filed by MMwould NOT come in prosecution‟s case-in-chief [propensity]…but to counter defense of accident/mistake = evidence becomes MUCH more relevant for different purpose, in all likelihood will come in under 404(b) as absence of mistake b. Can prosecutor, to show MM is a greedy person, offer evidence of shady transaction in which MM took financial advantage of his siblingsgreediness would be character evidence that prosecutor could NOT offer UNLESS D opened the door + it is in the WRONG FORM [direct examination only allows reputation/opinion, NOT specific act] c. Can prosecutor offer MM‟s sudden preference for untraceable financial transactions to show MM‟s INTENT regarding statements he field with SECif it could be connected up, it may show the planner‟s scheme to show that he intended to do this [rather than accidental] xii. 5-27: CF charged with passing bad checks, which she signed „I.M. Rich‟…can prosecution introduce fact that on 3 prior occasions, C wrote checks signed „I.M. Rich‟if identity is issue, then YES would come in under modus operandi by signature crime…if identity is NOT in issue, then it would NOT come in [propensity evidence!!] Res Gestae: when admitted act, and act before it may be useful to explain = should ALL be admissible i. Some other acts evidence is so closely connected to act in issue that to exclude the other acts would impede the trier‟s ability to determine the facts ii. Closely connected other acts admitted under „res gestae‟ principle = to complete the story iii. Problems: 1. 5-28: T was short on money after losing card game…decided to rob local gas station to obtain „fast cash‟…T successfully robbed and fled on foot, as T danced around a corner he knocked over and severely injured old lady…T tried separately for robber and battery, at battery trial prosecution wishes to introduce evidence of robbery to show why T was running so quickly at timeRes Gestae…if court deems relevant and relevance is NOT substantially outweighed by danger of unfair prejudice [403] will be admitted 2. 5-29: R, D, and M charged with conspiracy to import illegal substance…prosecution offers testimony of RR to state that he purchased substance from D…trials of co-D are severed and this testimony is offered in M‟s trialseems to be sufficiently distinct from conspiracy itself = NOT good res gestae argument [NOT connected closely enough to crime itself]…could be offered to show access/intent/motivation to import was to have financial gain [404(b)] People v. Chambers—„preppy murder‟ case…prosecution wanted evidence admitted that D stole victim‟s diamond earrings and money [accused of raping and murdering victim and leaving in Central Park]wanted admitted ONLY to prove state of mind i. Wanted to admit that had them in on in photograph at bar and later they were NOT found on body or at bar ii. Could show MOTIVE and INTENT iii. Problems with admitting under 404(b) = who act was it in causing the earrings to disappear 1. Asking jury to 1st find earrings taken by D = show that he could have motive to kill or didn‟t care after he killed her 2. Doesn‟t negate that she may have taken them out, dropped them along the way iv. Should have been kept out because doesn‟t meet conditional relevancy standard—NOT enough evidence for jury to find by preponderance of evidence that he took the earrings 1. V. Review Problems: i. 5-30: S prosecuted for distribution of cocaine after she allegedly sold 1 gram to undercover cop 1. Prosecution offers evidence in its case in chief that S had sold cocaine on 4 prior occasions, S objectsBasis of object—prosecution can NEVER offer character evidence in case in chief [propensity evidence that inclined to sell cocaine]…even if prosecution could offer evidence, it is in wrong form [MUST be reputation/opinion on direct]…specific acts ONLY admissible on crossexamination 2. What if S had been acquitted after jury trial about 2 of alleged saleseven if person has been acquitted of prior act, will be admitted if jury can find by a preponderance of evidence that committed act a. Dowling v. US—D accused of bank robbery and testimony of victim where he had been acquitted for breaking/enteringnothing to indicate that question of identity was why he was acquitted [admissible] b. Chase thinks a suspect rule 3. If prior sales are otherwise admissiblequantum of proof required before court can admit evidence is sufficient evidence to which a jury could find by a preponderance of evidence that D committed the prior act ii. 5-31: D, a cabbie, gave E ride across town [7th to Piedmont]…while D was telling E that she would one day be famous because of desire to succeed, forgot to pay attention and crashed…in suit brought by E, E offers evidence that D had received 12 citations for reckless driving in past 2 yearsNOT admissible to show D‟s propensity to drive carelessly…propensity can NEVER come in civil case!! When it is allowed at all must come in by reputation/opinion therefore wrong form too [NO specific acts permitted] iii. 5-32: TV new reporter AP is sued for defamation by State Water Commissioner, CY, after AP called her „an incompetent thief‟…at trial, P offers the following evidencecharacter is issue because DEFAMATION case 1. P was given award for excellence in her position as Water Commissioner by BSA 6 years agoadmissible because tends to show that she is competent [not necessarily that probative]…but bears upon if she is competent, form is proper because when character is issue can offer specific act/reputation/opinion 2. P is known in community for her honestyadmissible to rebut that she is dishonest [thief] 3. In 1992, P voluntarily returned an erroneous bank draft that gave her a windfall of $30,000bears upon honesty because she could have kept it [dishonest], and honesty is pertinent to same trait as thievery 4. P charged with disorderly conduct after attending an REM concert 2 years agodoes NOT show whether she is competent/incompetent = NOT pertinent, therefore NOT admissible 5. P shoplifted a dress from Bloomingdale‟s 5 years earliershows that she is thief, admissible as character and admissible as to truth of statement admitted [defense] 6. Water supply decreased by 35% during P‟s tenure as commissionerwithout knowing more it is NOT probative of competence [could have a drought during this period] iv. 5-33: W is charged with assaulting his estranged brother M…at trial W testifies in his own behalf…he concedes punching M and breaking his nose, but claims „I only did so after he swung a chain saw at me‟ 1. If M swung the chain saw almost simultaneously with the punch, would the evidence about the chain saw be admissiblecould come in as res gestae to show context [MORE likely] = all one act 2. If M swung chain saw at W several hours earlier that same day, would evidence regarding chain saw be admissibleNOT connected enough for res gestae…could come in under 404(b) to show if accidental or intentional HABIT EVIDENCE: a. Individual Habit Evidence—specific response to specific stimulus…you do it automatically!! i. Type of Acts: 1. Usually very simple conduct 2. If conduct is too complex, you think about it 3. Semi-automatic conduct ii. Requirements: 1. Sampling—seen X number of times 2. Invariability—NEVER changes iii. Justification: admitted because character of person‟s behavior that departure is unlikely…behaving almost robotically 1. Requires HIGH degree of invariability [70X out of 100 is NOT enough] 2. Acts undertake while driving 3. Habitual Pattern—driving to work by instinct, rather than going to right place iv. E.g.—person crosses street mid-street EVERY day f. b. c. 1. If car accident and issue that P was jay-walking 2. Probative that P was mid-walk Organizational Habit—can involve more complex behavior…employees of company think when acting i. Corporate procedure that is invariably followed…may admit something that is complex ii. E.g.—President of WA, commuter airline, killed in crash…issue at trial was whether person flying plane at time of crash was president [licensed pilot] or regular pilotevidence offered to show president piloted plane on all 10 of prior occasion in which he flew company aircraft 1. MOST courts would NOT admit this as individual habit evidence…decision to fly a plane isn‟t one that you make without thinking 2. On the other hand, the policy that president will always fly plane on board because president is pilot = could indicate an organizational habit Problems: i. 5-34: D was accused of stealing sneakers from sporting goods store…D claimed at trial that he purchased goods but was NOT given sales receipt…prosecution then attempted to introduce evidence showing that it was the custom of the store to give sales receipts with every purchase 1. Admissible as organization habit—repetitious conduct that trained to do 2. Specific examples of store‟s practice regarding receipts does NOT need to be provided prior to admission of evidence showing habit or routine business practice, but someone has to know organizational habit that is in connection with act ii. 5-35: Fiery crash occurred between cars driven by P and D…P claimed D negligently caused accident 1. At trial, P attempted to introduce evidence that D „is always in a rush‟NOT admissible as habit evidence…looks more like character evidence 2. P testifies that she „regularly uses turn signals‟getting closer to habit evidence [credibility issue, but certainly competent to testify to your own habits] iii. 5-36: D, R, prosecuted for driving while intoxicated at 1 pm…state introduced evidence at trial that D drank a shot of Chivas Regal liquor promptly at noon every day 1. Evidence probably admissible if truehabit evidence 2. Would it be admissible if state offered to show R was in habit of getting drunk every day around noongetting drunk depends on a lot of variables [number of shots; amount of food in stomach], therefore NOT admissible as habit evidence [habitual drunk = TRAP (NOT habit evidence)], but could come in under character evidence!! iv. 5-37: P claims fired from police force because exercised 1st Amendment right to freedom of speech…P offers evidence at trial that police department habitually fired individuals who exercised their 1st Amendment rights, letting go several different people for speaking outNOT likely that it is admissible, NOT organizational habit to fire someone for saying something without any consideration [unlike sales receipt that is routinely handled…NO deliberation]…habitually fired is likely to be a TRAP [company NOT likely to have habit of firing!!]