Character Evidence - Understanding Criminal and Civil Evidence on the UBE for the MEE and MBE

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Character evidence is an extremely important topic on the UBE, as we will see approximately 3-5 MBE questions on the subject and can certainly find an MEE issue in the subject of character evidence.  As such, this blog post is designed to breakdown character evidence and differentiate the difference(s) between CRIMINAL and CIVIL character evidence, easily the biggest area of confusion for most examinees.

 

I.                 So what exactly is Character Evidence (hereinafter “char EV”)?

Char EV refers to a person’s general propensity or disposition such as: Honesty; Fairness; Peacefulness; or violence.

 

BAR EXAM NOTE – Be on the lookout for these aforementioned keywords.  They will signal that you are dealing with a character evidence question.

 

       BAR EXAM NOTE – Char EV is NOT Habit evidence.  With habit evidence, be on the lookout for keywords such as always, never, all of the time, none of the time, etc.  A good way to remember the difference between Char EV and habit evidence is to tell yourself that “Habit evidence is what we DO, and character evidence is who we ARE.”  Take a look at the Char EV v. Habit EV blog post in our evidence section for an elaboration of same.

 

II.               Potential purposes for the admissibility of Char EV –

1 – A person’s character is an ESSENTIAL ELEMENT IN THE CASE.  Note that this is RARE in a civil matter and NEVER in a criminal case OR;

2 – Char EV is needed to prove CONDUCT IN CONFORMITY WITH CHARACTER at the time of litigated event aka character as circumstantial evidence of a person’s conduct on a particular occasion OR;

3 – Use char EV to prove a witnesses' bad character for truthfulness to IMPEACH THEIR CREDIBILITY.

 

III.              Character Evidence in a Criminal Matter -

Overview –

Evidence of the defendant’s character to prove conduct on a particular occasion is INADMISSIBLE DURING THE PROSECUTION’S CASE IN CHIEF!  This means that the prosecutor is NOT allowed to bring in char EV when presenting their case.  HOWEVER, the defendant during the defense presentation of the case MAY introduce EV of a relevant character trait.  They can do so by REPUTATION or OPINION testimony of a character witness to prove conduct which thereby OPENS THE DOOR TO REBUTTAL by the prosecution.

 

So what are some examples of proper character evidence?

Evidence of a GENERAL bad char trait for VIOLENCE is NOT allowed in the case in chief however the defendant can into evidence of this type on the defense presentation of their case.  Remember, when char EV comes in?  Can only testify to a char trait that is RELEVANT to the type of crime charged!

 

BAR EXAM NOTE – It is not enough to know the difference between char EV and habit.  You must also look to see 1) the type of crime charged against the 2) type of char EV sought to be introduced!  For example, if the defendant is charged with a violent crime, evidence that he is peaceful or violent IS relevant!  Evidence that he is honest or dishonest IS NOT relevant.  On the contrary, if the defendant is charged with a white collar / fraud crime, evidence that the defendant is honest or dishonest IS relevant whereas evidence that a defendant is violent or peaceful IS NOT relevant. 

 

So what happens when the defense HAS opened the door?  The Prosecution may rebut -

If the defendant has OPENED THE DOOR by calling character witnesses the prosecution may rebut IN TWO WAYS

 

1 – By cross examining the defendant’s character witnesses with “Have you heard” or “did you know” questions about SPECIFIC acts or ARRESTS of the D that reflect ADVERSELY on the particular character trait that D has introduced.  NOTE – The prosecution MUST have a GOOD FAITH belief that the arrest(s) occurred and use that for a LIMITED PURPOSE to impeach char.  OR;

 

2 – By calling its own reputation or opinion witness(es) to contradict defendant’s witness(es).  Some examples include:  

-        The prosecution MAY TEST the character witness’s knowledge about the D’s rep and SOUNDNESS of opinion AND the prosecution must ABIDE by the answer and not prove anything actually occurred

-        NO irrelevant bad acts

 

BAR EXAM NOTE - If the defendant himself takes the stand and says NOTHING about character but rather denies the crime? One cannot bring in character evidence as the defendant never OPENED THE DOOR!

 

IV.             Character Evidence in a Civil Matter –

-        Char EV is generally INADMISSIBLE to prove CONDUCT IN CONFORMITY.  For example – A sues B for auto negligence.  During the prosecution’s case in chief, A seeks to offer evidence of B’s reputation for careless driving.  Is that admissible? NO! That would go to prove conformity and that is not permitted.

-        During the defense, B calls a witness to testify that in her opinion, B is a prudent and careful driver.  Is that admissible?  NO as the D in civil gets no break!

-        Evidence of a person’s character is ADMISSIBLE in a civil action where such character is an ESSENTIAL ELEMENT OF CLAIM OR DEFENSE (provable by reputation, opinion, and specific acts).  This applies in only three situations: 1 – a tort action alleging negligent action or entrustment; 2 – a defamation claim OR; 3 – child custody dispute.

 

V.               The VICTIM’S Character in a  Sexual Misconduct Case –

 

Under applicable rape-shield laws, where the defendant is alleged to be “unchaste”, the following evidence about the victim’s character is ORDINARILY INADMISS concerning the opinion using reputation evidence about the victim’s sexual propensity OR evidence of specific sexual behavior about the victim.

 

EXCEPTIONS –

1 - Specific sexual behavior of the victim to prove that someone OTHER than the D was the course of semen or injury to the victim; OR 2 – victims’ sexual activity with the defendant if the defense of consent is asserted; OR 3 – where exclusion would violate the defendant’s due process.  This type of character evidence is often called the “love triangle defense.”

Conclusion

          It is extremely important to understand the application of criminal and civil character evidence.  Success on the likely 3-4 MBE questions in this area of law, and perhaps success on an evidence MEE issue depends on your knowledge of the law. For more information concerning this section of Evidence, another area of Evidence, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com 


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