Evidence

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• Publisher: QuickStudy Reference Guides
• Year: 2018
• ISBN:
  9781423237563
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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Suggested uses:
o Used by criminal justice majors and professionals
o Law students and legal professionals at any level
o To understand proportion and relevance regarding Evidence
o Quick and constant refreshers before classes and exams
o As the last review before taking the Bar Exam

TYPES OF EVIDENCE

CHARACTER IN CIVIL CASES [404]

1. Generally inadmissible to prove action in conformity therewith (e.g., plaintiff cannot introduce evidence that defendant is usually a reckless driver to prove he/she was negligent on day in question)
2. Admissible when directly in issue
   1. Character is an ultimate fact in dispute and must be proved by competent evidence [405(b)]
      1. Defamation: Plaintiff sues defendant for calling plaintiff a thief, and defendant pleads truth as an affirmative defense
      2. Negligent entrustment: Plaintiff sues defendant for negligently permitting use of car by reckless driver; driver’s character for recklessness is in issue
   2. Evidence of either reputation in the community or specific acts to show this character
      1. Libel: Plaintiff is alleged to be a thief, so evidence that plaintiff has stolen things is admissible
   3. FRE allow any type of evidence (reputation, opinion, or specific acts) [404(b)]
   4. Methods of proving character:
      1. Specific acts
      2. Opinion testimony of witness who knows person
      3. Testimony of person’s reputation in the community

CHARACTER IN CRIMINAL CASES [404]

1. Generally, bad character inadmissible to prove defendant is more likely to have committed crime
   1. Rationale: Such evidence creates extreme prejudice (e.g., if the prosecution is permitted to show defendant is a bad person, jury may convict regardless of defendant’s guilt in crime charged)
2. Accused may always introduce evidence of good character that tends to show he/ she did not commit crime whether or not he/she takes the stand
   1. Door is opened to attack character of defendant when defendant introduces evidence of good character, and door is opened to introduce character of victim if defendant introduces evidence of character of victim [402(a)(1)]
   2. Methods of proving character: Reputation and personal opinion testimony
      1. Traditional view: Witness limited to reputation only, not opinion or specific acts of defendant
      2. Modern view [405]: Witness for defendant may testify to defendant’s reputation and to his/her personal opinion
      3. Evidence of specific acts is not allowed unless character is an essential element of charge, claim, or defense
3. Prosecution cannot initiate evidence of bad character of defendant, but if defendant puts character in issue by having a character witness testify as to his/her opinion of defendant’s reputation, prosecution may rebut by showing defendant’s bad character; defendant does not put his/her character in issue merely by taking the stand but rather credibility (not character) is in issue, and prosecution is limited to impeachment rather than substantive character evidence
   1. Methods of proving character: If defendant limited to reputation evidence to show good character, then prosecution generally can show same type of evidence to show bad character (e.g., witnesses’ testimonies show that defendant’s reputation in community is violent)
   2. Cross-examination of defendant’s character witnesses
      1. Majority view: Prosecution may test credibility of defendant’s witnesses by inquiring on cross-examination whether witness has heard of particular instances of defendant’s misconduct (i.e., reputation testimony)
         1. Prosecution may ask about arrests, as well as convictions
         2. Modern trend [405]
         3. On cross-examination, inquiry is allowed regarding specific instances of conduct (i.e., “Do you know that—?” is allowed)
         4. Majority view: If witness denies knowledge of specific instances of conduct, prosecution cannot prove by extrinsic evidence (e.g., arrest and conviction records)
   3. Defendant does not open the door by merely taking the stand

VICTIM’S CHARACTER IN A CRIMINAL CASE [404(a)(2)]

1. Admissible in homicide cases
2. Inadmissible in rape cases (e.g., rape shield: evidence of sexual behavior or sexual disposition of victim is generally inadmissible)
   1. Exceptions: Victim’s sexual behavior may be admissible to prove someone else is source of semen, injury, or physical evidence
3. Specific instances of sexual behavior between victim and accused may be admissible by prosecution for any reason and by defense to prove consent:
   1. When defendant claims self-defense, he/she may introduce evidence of victim’s violent nature to show victim was the aggressor
   2. The prosecution may then introduce evidence of victim’s good character
   3. Majority of courts do not allow prosecution to introduce rebuttal evidence of defendant’s reputation for violence to show defendant was the aggressor
4. Methods of proving character: Reputation and opinion evidence is admissible to show character of defendant or victim (majority view)
   1. On cross-examination, inquiry is permitted into specific instances of past conduct of victim

OTHER BAD ACTS [404(b)]

1. Admissible to prove another element of present crime and not to show defendant had criminal propensity
2. In a criminal case, defendant may request reasonable notice of prosecution’s intent to use bad acts as evidence to prove another purpose; MIMIC rule: Motive, Intent, Mistake (absence of), Identity (e.g., if modus operandi is a crime signature), Common plan or scheme (e.g., evidence that defendant recently stole burglary tool is probative of burglary)
3. Similar crimes in sexual assault cases [413]: In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault; the evidence may...

Table of contents

• JUDICIAL NOTICE [201]
• JUDICIAL RULINGS
• BURDENS OF PROOF [301]
• KINDS OF PROOF
• RELEVANCE
• TYPES OF EVIDENCE
• WITNESSES
• HEARSAY
• HEARSAY EXCEPTIONS
• CONSTITUTIONAL ISSUES IN CRIMINAL LAW: CONFRONTATION CLAUSE