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Character evidence is impermissible to offer in a civil context unless:
What kind of character evidence may be offered in the limited exception?
1. The person's character is an essential element of a charge, claim, or defense (i.e. IN ISSUE). The three common types:
a. Defamation case (character for truthfulness--where D asserts truthfulness defense)
b. Child custody
c. Negligent hiring, entrustment, and retention claims
Can offer any kind of character evidence--rep/opinion/specific acts
To offer another bad act (specific act of misconduct), one also needs to offer:
(i) sufficient evidence to support a jury finding that the D committed the prior act and
(ii) its probative value must not be substantially outweighed by the danger of unfair prejudice
When can specific acts of misconduct be used?
In a civil or criminal context when relevant to proving something other than character: MIMIC. Motive, Intent, absence of Mistake or accident, Identity, Common Scheme or Plan, and D has to be contesting the issue that MIMIC addresses.
May character evidence be offered to impeach?
Opinion or reputation evidence about character for UNTRUTHFULNESS may be offered.
Can extrinsic evidence be admitted to prove specific instances of misconduct?
No. Not going to have a side trial. Cannot ask about consequences of misconduct either--e.g. weren't you arrested/fired, etc.
Can other witnesses be called to testify as to good reputation for or opinion of an impeached witness's character for truthfulness?
Yes--once the witness's general character for truth and veracity has been attacked, can do.
May a witness be impeached by proof of arrest or indictment?
No--must have been a conviction. Pending review or appeal is fine and will not affect admissibility
When is evidence of an alleged victim's sexual behavior admissible in the civil context?
It is admissible when it is not excluded otherwise and its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
When is evidence of an alleged victim's sexual behavior admissible in the criminal context?
When offered to show something other than the V's sexual disposition/behavior:
1. Evidence of past sexual acts between D and V, to prove consent.
2. Specific acts evidence of V's sexual behavior to prove that someone other than D is the source of semen, injury, or other physical evidence.
3. Where excluding the evidence would infringe on D's const. rights.
When D takes the stand, he places what in issue?
His credibility. Prosecution is tf limited to impeachment, rather than substantive character evidence.
How may the PROSECUTION rebut character evidence introduced by D?
By cross-examining the testifying W about specific acts of D (have you heard/did you know) or offering own W to testify to D's bad rep/give opinions of D's character.
If offering specific acts evidence, cannot introduce any extrinsic evidence of the misconduct.
Can a witness be impeached with evidence of his own acts of misconduct?
No. Specific acts may only be offered to attack W's character for TRUTHFULNESS, and only on cross of the witness--without referencing consequences (arrest, fired, etc). No extrinsic evidence is permitted to prove bad acts.
When can extrinsic evidence be used to impeach (what impeachment methods may it be used for)?
Sensory deficiencies; contradictory facts (if not collateral matter), bias or interest (never will be collateral), prior inconsistent statements (if not collateral).
What kind of foundation is needed to introduce evidence suggesting bias or interest?
W must be asked on cross exam about facts showing bias or interest before extrinsic evidence can be allowed. If facts are admitted to, admission of extrinsic evidence is within the court's discretion.
What are the five exceptions for hearsay evidence when declarant is unavailable?
1. Dying declarations where declarant believed death was imminent and the statement was about the cause or circs of his death.
2. Former testimony where the adverse party or their predecessor in interest had a similar motive and sufficient opportunity to develop the testimony at the prior proceeding
3. Statements against pecuniary, proprietary, or penal interest when made such that reasonable person in declarant's position would only have made it if she believed it to be true. Must have had knowledge of the facts and been aware it was against interest when made.
4. Statements of Personal or Family History
5. Statements against party that intentionally procured the declarant's unavailability.
When may grand jury testimony be offered? When may it not be offered?
It may be offered under the prior inconsistent statement exclusion, if it applies. It may not be offered as former testimony under the exception because there is no cross exam in GJ.
What character evidence may D offer about his own character in a criminal case?
Only that which relates to a character trait in issue. e.g. cannot introduce evidence of good character for truthfulness and honesty when crime is violent crime.
When is a statement considered impliedly adopted by the opposing party?
With silence in the face of an accusatory statement, if:
1. The party heard and understood the statement;
2. The party was physically and mentally capable of denying the statement; and
3. A reasonable person would have denied the accusation.
BUT NOT silence in the face of accusation by police.
How may a hearsay declarant be impeached?
By any means that would be proper if the declarant were testifying.
Who do we not have to give the opportunity to explain or deny a prior inconsistent statement if we offer extrinsic evidence?
The statement is one of the following:
1. It is a statement of party opponent
2. If the witness is unavailable (where justice so requires--we find the prior inconsistent statement but W not available)
3. Hearsay declarant's statement
What does it mean for evidence to be collateral?
It means that the evidence is not relevant to an issue in the case.
Evidence of subsequent remedial measures is inadmissible to prove what? Admissible to prove what?
i. Inadmissible to prove negligence, culpable conduct, design defect, or need for warning.
ii. Admissible to prove ownership or control IF IN ISSUE, feasibility of precautionary measure, or to impeach cred of witness.
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