Evidence

• in general the use of character evidence is INADMISSIBLE for the purpose of proving that a person acted in conformity with their character
• Rationale:
• Jury may place too much weight on character Extremely prejudicial
• People don’t always act in accordance with character

• Introducing character witness (in general)
• Defendant “opens the door” by calling a character witness
• May use opinion and reputation evidence
• P can rebut
• May use SIC’s on CX of character
• witness under 405(a)

• Character of accused
• Character of victim
• Character of witness

• (a) offered by the accused in criminal case (good character defense) OR by the prosecution to rebut
• Defendant must “open the door” to character evidence
• Can use character witnesses; a character witness must have known the D’s character BEFORE the alleged crime occurred
• NO SIC’s may be used
• SICS may be used on CROSS examination though
• Usually D is showing that he is someone of good character who wouldn’t have committed the crime
• After D opens the door, P has a chance to rebut
• This is also true in Federal
• (b) offered by accused (does not specify P or D) in a civil case of conduct involving moral turpitude OR offered by the accusing party to rebut
• NOTE- this is ONLY in the Texas rule; nothing like this in Federal rule
• Moral turpitude- conduct involving…
• Deception
• Corruption
• Deceit

• Criminal
• Offered by the accused about the victim OR offered by prosecution to rebut the above
• Prosecution will probably have to re-open case-in-chief to introduce their character witnesses for rebuttal

• Homicide Cases
• Evidence of peaceable character of victim offered by prosecution to rebut evidence showing that the victim was the initial aggressor

• Non-Homicide
• Offered showing self defense
• Objective: Defendant may call witnesses saying that victim had reputation for starting fights
• This opens the door and P can now rebut
• Subjective: looks at the defendant’s reasonable fear based on knowledge of victims prior violence

• Civil (no provision for civil in Federal Rules)
• Evidence of victim’s character offered by the person charged with assaultive conduct who claims to have been acting in self defense

• evidence of other crimes is not admissible for the purpose of proving the person acted in accordance with character
• BUT SIC’s may be admissible for purposes other than showing propensity, such as (NOT exhaustive)
• Motive,
• Opportunity
• Intent
• Preparation
• Plan (common plan or scheme)
• Knowledge
• Identity
• Absence of mistake or accident

• In an criminal case, if the accused requests, then the prosecution must give reasonable notice before introducing SIC’s for one of the above purposes
• Should be written notice
• Defendant should then make a motion in limine to exclude the evidence the prosecution intends to introduce
• If no notice was given, then evidence of the acts may be excluded
• IF the evidence IS admitted, the opposing party should request a limiting instruction so that it may only be evaluated for its offered purpose, not for proving conformity with character

• Generally: Other SICS that may be admissible in Texas
• Same transaction contextual evidence – evidence of other offenses connected to the charged offense
• Ex: Resistance of arrest for the crime you are being charged with
• General background contextual evidence (Res gestae)
• Res inter alios acta (things done between others)
• Cannot use as character evidence, but can use it to show something else, such as knowledge

• Opinion – almost always admissible
• Witness must have personal knowledge of the person and the specific trait
• Reputation – almost always admissible
• Witness must have personal knowledge of the person’s reputation
• Reputation must relate to issue in the case
• 405b- Specific Instances of Conduct (Texas and Federal)
• admissible when character is an essential element of a charge, claim, or defense
• Criminal- entrapment defense
• Civil
• Negligent hiring/entrustment
• Libel/ /slander
• Child custody

• A character witness MAY be Cross examined about the witness’s basis of knowledge by inquiring whether the character witness is aware of the principal witness’s or party’s specific acts of conduct (SIC’s)
• “Have you heard” and “did you know”
• acts must be relevant to the character trait identified in direct examination

if you ask these questions, and the witness says “no” you are stuck with the answer, and cannot enter evidence to the contrary

• Applies ONLY to criminal (Federal rule is civil and crim)
• A)Rape shield- reputation or opinion evidence of past sexual behavior of the victim is not admissible

• B) SICs of victims of sexual crimes are not admissible UNLESS
• 1) meets the requirements of c) and d) (we do not have to know);
• 2) The evidence is (any one of these below if sufficient) AND see 3)
• a) Necessary to rebut or explain scientific or medical evidence offered by the state;
• This is when prosecution enters evidence of the victim’s injuries and bodily fluids that are found after the assult
• B) Of past sexual behavior with the accused and is offered by the accused on the issue of the victim’s consent in this crime;
• C) Relates to motive or bias of the victim
• This has to do with the victim having a motive to lie about the defendant committing the act, etc.
• D) Admissible under 609 (See 609 conviction time below); or
• If the victim’s past sexual conduct has resulted in a final felony or a crime of moral turpitude, it is may
• be offered if it meets 609
• Ex: prostitution ·
• E) constitutionally required to be admitted ; AND
• Usually deals with right to
• confrontation or right to present a defense

• 3) the probative value of the evidence outweighs the danger of unfair prejudice
• NOTE- this looks like the 403 balancing test BUT
• 403 requires substantially
• AND in 403 the opponent shows that the danger outweighs the probative value Here the proponent must show that the probative value outweighs the prejudice

• 413/414
• prosecution may introduce previous sex acts to show defendant’s propensity
• the “door” to character evidence does not have to have already been opened

• 415- Applies to civil federal cases
• defendant’s previous acts may be used to show propensity
• Remember Federal 412 is for criminal AND CIVIL

• 1- Can object with motion in limine once proponent gives notice of intent to introduce
• 2- Object, making the judge ask the proponent the reason the evidence
• is being offered

• Burden of proof is on the proponent
• Federal and Texas civil- burden is preponderance of the evidence that the SIC occurred
• Texas criminal- proof beyond reasonable doubt
• Judge will rule first (104(b)) whether a reasonable juror could find by the proper standard of proof that the act occurred and that the person involved committed it
• If so, he will admit it
• Remember even character evidence must meet the 403 balancing test If it is admitted, you can ask the judge to state his reasoning on the record
• Then request a limiting instruction

• Habit is different from character
• Habit is more reliable
• Showing that something is habit
• Introduce habit that the type of act has happened many times (there is no definite number to make it a habit)
• All types of evidence are admissible here
• Opinion, reputation, and SIC’s

• Note- Doctrine of Changes (Wigmore)
• Recognition that the more often an act has occurred with similar results, the less likely it is that the act was accidental

• Rule 407- Any party may impeach a witness (including the party who called him)
• BUT you cannot call a witness specifically for the purpose of impeaching him
• Methods of impeachment
• Evidence of Bias (Texas 613b)
• Prior inconsistent statement (613a)
• Character for untruthfulness (608a)
• Proof of witness’s specific acts
• Proof that witness has been convicted (609)
• Evidence which contradicts testimony
• Proof that witness lacks one of the common law elements of competency
• Expert testimony
• How?
• Ad hominem- attack of the person
• Or attack of the actual statement

• Credibility may be attacked or supported by opinion or reputation evidence BUT
• May only refer to character for purpose of truthful or untruthfulness AND
• Evidence of truthful character is ONLY admissible AFTER it has been attacked by opinion or reputation evidence or otherwise
• Anti-Bolstering statute
• BUT see 702- expert witnesses
• You do have to build up an expert
• witness’s credibility as an expert, but you can do this without it being considered bolstering
• You CAN rehabilitate the witness after he has been attacked
• But must be able to convince the
• judge that the credibility/character has actually been attacked
• What is otherwise? 609 introduction of convictions

• Before a prior inconsistent statement is introduced, the witness must be told of the
• Contents of the statement
• Time and place it was make
• Who it was made to
• And have an opportunity to explain or deny such statement

• Don’t have these requirements in Federal
• Just have to have opportunity to deny or explain
• In Texas you must lay this foundation

• If the witness admits to having made the statement, then no extrinsic evidence of it shall be admitted
• Simply admitting the statement was made is enough; witness doesn’t have to say anything about it being inconsistent
• What kind of extrinsic evidence may be used here?
• Testimony of another witness who heard the statement OR
• Introduce writing including the statement

• This does not exist in the Federal Rule
• Before the bias or interest is introduced, the witness must be told of
• Content of statement
• When and where it was made
• To whom it was made
• And have opportunity to explain or deny such statement or circumstances

• In federal, you can enter the
• statement without first laying this foundation and giving the witness this opportunity

• In Texas you MUST lay this foundation
• If witness admits to having made the statement (or being biased) then no extrinsic evidence of it shall be introduced
• If the witness denies then you can introduce the evidence to show the contradiction (actual bias or interest)

A party may have an opportunity to rebut any evidence that impeached the party’s witness under bias or interest

• Note
• You should CX the witness with regard to any bias he may have in order to impeach him
• If bias is shown, a limiting instruction should be requested
• SIC’s can be introduced to show bias
• Collateral fact rule- prohibits you from using an inconsistent statement to impeach a witness when the statement is only collateral to the case

• This rule is in criminal cases only
• After a witness other than the D has testified, the party who didn’t call that witness may motion to request to have the calling party produce any other statements of that witness that are in their possession that relate to the witness’s testimony
• In Texas either party may request this
• In Federal only the defense can request
• Jencks Act (Federal equivalent to Texas 615)

If the party obligated to produce does not obey the court order to deliver them, the related testimony will be stricken from the record

If prosecution refuses to produce, it could result in a mistrial

Lesson: If there is something you don’t want opposing counsel to see or find out, don’t put the witness on the stand

• Cannot be used as a human lie detector
• CAN be used to show capacity of a group of persons, in child abuse cases, especially for recognizing syndromes and the possibilty that children change their stories
• just cant say that person is or is not telling the truth

• 1) Target witness testifies
• 2) Character witness testifies (called by the person who didn’t call the target witness) testifies about the target witness’s untruthful character (according to 608(a))
• this person does not have to know about the case, just has to know about the target witness
• using opinion and reputation evidence
• 3) Counsel who called the target witness can CX the character witness regarding prior “truthful” acts (SIC’s) of the target (this is the CX referred to in 405a)
• Counsel will try to impeach the character witness
• Remember if counsel asks “did you hear about x n (SIC) when target witness was truthful” and the character witness says “no” counsel is stuck with the answer

Counsel wants to show that the character witness is not credible AND that the target witness is (rehabilitation)

• Specific instances of conduct may not be inquired into on cross examination nor proved by extrinsic evidence for the purpose of attacking or supporting the witness’s credibility
• BUT in Federal SICs are permitted if they are probative for truthfulness or untruthfulness; the cross examiner may ask questions, but is
• stuck with the answer
• Judge must first determine that its probative enough
• Also in Federal it says attack’s on witness’s character
• Texas rule says attacks on witness’ credibility, even though it is trying to prohibit character attack based on SIC’s

• Effect of 608(b)
• Can CX the character witness concerning specific instances of conduct of the target witness, BUT NOT cx of character witness concerning hisOWN personal conduct
• This is only for the purpose of credibility though

BUT if a witness’s testimony creates a false impression by alluding to acts of good behavior, then the door has been opened and the other side may introduce SIC’s to rebut

• To attack the credibility of a witness, evidence of prior conviction shall be admitted IF coming from the witness OR in public record BUT only if it was a felony or involving moral turpitude AND court determines the probative value outweighs the prejudicial effect to a party
• Texas requires moral turpitude
• Federal requires convictions punishable by death or imprisonment for over a year
• Key word: punishable NOT actually punished for that long

• Factors to consider in determining probative value
• Impeachment value of prior offense
• Temporal proximity of the offense and defendant’s subsequent criminal history
• Similarity between prior offense and the one being prosecuted
• Importance of defendant’s testimony
• Importance of the defendant’s credibility as a witness

• Proponent must show that the probative value outweighs the prejudice (in all cases)
• Notice this is different than 403
• In 403, admissibility is presumed
• In 609, INadmissibility is presumed

• If the probative value outweighs prejudice and the evidence is admitted, it is wise to request a limiting instruction so that the conviction
• is only used for purposes of impeachment

• B) evidence of conviction is NOT admissible if more than 10 years since the conviction OR since the witness was released from confinement (whichever is later) UNLESS the court determines that the probative value SUBSTANTIALLY outweighs the prejudicial effect
• This is the proponent’s burden to prove also
• Federal, convictions over 10 years are only allowed if written notice is given to opponent of intent to use the convictions
• C) Note- if the witness has completed probation, then you probably cannot introduce the conviction
• E) pending appeal on the conviction makes it inadmissible
• Federal rule permits convictions pending appeal though
• F) evidence is not admissible IF
• Adverse party has made written request specifying the witness or witnesses AND
• The proponent fails to give written notice of the intent to use such evidence, denying the aderse party the opportunity to contest
• In Federal, you only have to give notice for crimes over 10 years old (above)

• Notes
• If the witness denies the conviction, you are NOT stuck with that answer; you can introduce evidence to the contrary
• In Federal NO balancing test is required for the admissibility of evidence of conviction for crimen falsi crimes
• Crimes involving deceit (ex: theft by deceit)
• Everything else needs balancing
• test, except this

• Motions in Limine
• If a motion is limine is made the judge does not have to rule on it. Can wait to see how it unfolds at
• trial.

• Redirect examination
• calling character witnesses
• introducing prior consistent statements
• corroborating testimony
• expert testimony

• Redirect- the witness must have been attacked on CX and you should be able to show that they were attacked
• under 608a credibility may be supported by showing truthfulness, but ony after it has been attacked

character witness- can rehabiliate the target witness; then another character witness may be brought in to attack your character witness

• prior consistent statements- must have first been an inconstency created before you can use prior consistent statements
• in 613(b), prior consistent statements are not admissible except as provided by 801(e)(1)(b) (no federal counterpart)
• Rule 801e1b- a statement is NOT hearsay if
• 1- Declarant testifies at trial
• 2- Is subject to CX concerning the statement and
• 3- Statement is consistent with the testimony AND
• 4- Offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive
• prior consistent statement must have been made before the supposed fabrication or motive (proponent has burden of showing this)