Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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B. Exceptions to the Propensity Rule (235)

Michelson v. United States, 225 U.S. 469 (1948)(235)

Questions on page 243:

How do Rules 403, 404, and 405 relate to each other? Rule 404 deals with when proof of character can be admitted; Rule 405 deals with methods (how) of proving character. See Rule 405 Advisory Committee's Note. Rule 403 applies even after Rules 404 and 405 are satisfied. A defendant may always move that evidence not barred by Rules 404 and 405 should be excluded because its prejudicial impact outweighs its probative value.

Form should follow function so that the question of when proof of character can be made precedes the question of what form such proof should take. Specific prior acts and the inferences that can be drawn from them are at the same time the most probative and the most prejudicial type of character evidence. The traditional approach and the approach of the federal rules is that when character is an essential element, specific prior acts are allowed because of their highly probative value; when character is not an element, only reputation and opinion evidence -- albeit weaker but also less prejudicial -- is allowed. In federal court the following types of character evidence are allowed:

(1) By the prosecution as part of its case-in-chief: specific crimes, wrongs, and acts may be introduced in FRE 404(b) situations -- where they are independently relevant for a purpose other than propensity. See Trenkler. Specific instances of conduct are also admissible in the prosecution's casein-chief where character is an element of the charge, such as where the charge is being a felon in possession of a firearm. Rule 405(b). See Old Chief. See also in the civil context , Problem - Child Custody (245) - and Problem - The Mayor (244).

(2) By the accused as part of its case-in-chief: Under Rule 404(a)(1), reputation and opinion evidence may be offered by the accused to prove her own good character. The accused may introduce character evidence about a pertinent trait of the victim of the crime. Rule 404(a)(2). See also Rule 412 re evidence of the behavior of the victim in a sexual assault charge to show consent or the source of semen or injury. The rape shield statute is discussed below.

(3) By the prosecution on cross-examination of defendant's witnesses: under Michelson and Rule 405(a)(2d sentence), the prosecution may ask character witnesses about specific acts to test the validity of their reputation or opinion evidence.

(4) By the prosecution to rebut the accused's case-in-chief: reputation and opinion evidence may be used to rebut testimony of the accused's character if the accused has raised the issue, (Rule 404(a)(1)); the same kind of evidence may be offered by the prosecution in a homicide case to prove the peaceful nature of the victim if the defense contends that the victim was the first aggressor. Rule 404(a) (2). Specific acts may be introduced by the prosecution if character is an essential element of a claim or defense. Rule 405(b).

(5) Rehabilitation by the accused: rehabilitation must be in a form responsive to the attack. The kind of evidence allowed, therefore, will depend on the nature of the attack.

(6) In a civil case: the federal character evidence rules (FRE 404405) exclude the use of propensity logic for purpose of determining what happened on the occasion of the litigated event; the rules permit the use of propensity proof to attack and then to support, the credibility of witnesses. See FRE 404(a)(3) and FRE 607-609

(7) In a civil or criminal case of sexual assault or child molestation, the prosecution may introduce proof prior sexual misconduct by the defendant for any inference, including propensity. Rules 412-415.

Problem - Proof of the Defendant's Good Character (243)

The point:

The structure and operation of Rules 404 and 405 are designed to give the accused the option of opening up the issue of his reputation.

Answer and Analysis:

(1) The objection should be sustained. Under Rule 404(a), the prosecution may not introduce character evidence solely to show propensity.

(2) The objection should be overruled. Under Rule 404(a)(1), defendant has the option to bring in character evidence if she desires. The option works in only one direction. The state may not argue that a particular defendant is a bad person who probably committed the crime charged, but the defendant may make the argument that he is a good person who therefore probably did not commit the crime charged.

(3) Admissible under FRE 405(a), assuming that the prosecutor can make a good faith showing that defendant did in fact swindle the widow Brown. The question is relevant to W3's knowledge of D's reputation and to W3's standard of what a good reputation for honesty is.

4) Inadmissible. Once the defendant has opened up the issue of his character with respect to some pertinent trait of character, the prosecution is then free to cross-examine D's reputation witnesses by asking about specific acts. But in this example the prosecution is not cross-examining, but rather trying to elicit proof of specific acts from its own witnesses. Once the defendant has opened up the subject of her character, the prosecution is free to call its own witnesses to testify to the defendant's bad character. However, the prosecution is still constrained by the rules as to form of proof, and may not do so by proof of specific acts unless character is an essential element of a claim or defense, which it is not in this instance. Would the prosecution be permitted to call a witness to testify that the defendant's reputation for honesty was bad? Yes.

Problem - Proof of the Defendant's Violent Character (244

The point:

Prosecutorial evidence of the defendant's criminal character is excluded not because the form of proof is unreliable or inefficient, but because of the potential for prejudice which such proof carries, and because, no matter how reliably character is proved, it is of marginal probative value.

Answer and Analysis:

(1) Inadmissible under FRE 404(a). The accused has not yet raised the issue of character and the prosecution has not suggested any purpose for which the evidence is independently relevant. This evidence is anonymous, multiple hearsay, as is all reputation evidence.

(2) Inadmissible under FRE 404(a) and 405(a). The evidence is excluded even though the hearsay and the anonymous nature of the evidence has been eliminated.

(3) Inadmissible under FRE 404(a) and 405(a). Not only have the hearsay and anonymous qualities been eliminated, but the efficiency and reliability problems have also been eliminated by the certified record.

(4) No denial of due process, at least according to the Supreme Court. The problem is based on Spencer v. Texas. 385 U.S. 554 (1967), in which the Court ruled 5 to 4 that the Texas practice of "unitary" trials in which the jury decides both guilt and sentence in a single (not a bifurcated trial) was constitutional even though the procedure resulted in the jury 's receiving evidence of the defendant's bad character relevant to sentencing before the jury had decided the defendant's guilt. The case does not represent the Supreme Court's finest hour.

Problem - The Mayor (244)

The point:

Relevant character evidence, including evidence of specific acts, is always admissible when character is an essential element of the claim or defense.

Answer and Analysis:

This problem is included to point out the contrast between (1) use of character evidence circumstantially to prove a material issue other than character and (2) use of character evidence when character is itself the material issue. The alleged libel defames the plaintiffs character. Truth is a defense. The evidence offered is allowable under Rule 405(b) because proving that the defendant is "corrupt," etc., is an essential element of the defense.

There is no violation of the propensity rule here because character is not being proved to show action in conformity therewith. Character is being proved for its own sake. Rule 405 limits the form of proof of character to reputation and opinion when character is used to show propensity (Rule 405(a)); it imposes no constraint when proof of character is not for the purpose of showing propensity.

Problem - Child Custody (245)

The point:

When a person's character is in legitimate dispute character evidence can be admitted subject to Rule 403 constraints.

Answer and analysis:

A child custody case often raises issues of a parent's "character" as a fit, loving, neglectful, incompetent parent. A wide version of character evidence can be received on the issue. While proof of prior specific acts is not rendered inadmissible by Rule 404, the court might exclude the evidence under Rule 403 if the prior acts seemed remote or cumulative of other evidence.

Problem - Battered Spouse Syndrome (246)

The point:

Sometimes what would otherwise be inadmissible character evidence can become admissible if the relevant trait is labelled as a psychological condition through expert testimony.

Answer and analysis:

Lay testimony identifying an specific character trait of an actor as proof that a specific act was in accord with that character trait is generally inadmissible under Rule 404. However testimony that a key actor (the defendant) suffered from a psychological condition, and that the act in question was in accord with that psychological condition, is frequently admitted. One explanation is that expert evidence of psychological condition is more reliable than lay appraisals of individual "character". Another is that sometimes the defendant will be allowed extra room to prove his innocence.

State v. Conlogue, 474 A. 2d 167 (Me. 1984)

This case is a good example of the use of evidence of the character of a potential alternative suspect in an effort to exculpate the defendant. The Maine court ruled that it was error for the trial court not to allow the defendant to offer evidence that the defendant's girl friend and mother of the victim had herself been an abused child, and hence would have a character tendency to abuse children herself. The defendant was also permitted to prove other instances of abusive behavior on the part of the alternative suspect, to give rise to the inference that the alternative suspect may have perpetrated the violence on which the prosecution was based. As the dissent indicates, this is bald propensity character evidence that would ordinarily be barred by Rule 404. Does the criminal defendant get some additional scope in the entering of character evidence of this kind?

Problem - Tit for Tat (252)

The point:

In civil cases, character evidence offered for purposes of showing action in conformity therewith on the occasion of the litigated event is inadmissible even though such evidence would be admissible in a criminal action arising out of the same facts.

Answer and Analysis:

(1) Inadmissible. Rapper is offering proof of his character for peacefulness to show that he acted in conformity therewith on the occasion of the litigated event. His proof is barred by FRE 404(a), and there is no exception to 404(a) which permits it. Even in a criminal prosecution, the State would not be permitted to offer evidence of Rapper's reputation for peacefulness as part of its case-in-chief.

(2) Inadmissible. Were this a criminal case the evidence would be admissible under FRE 404(a)(2) to show that Pend was the aggressor. But this is a civil case. FRE 404(a)(2), by referring to the "character of the victim of the crime" limits the exception to criminal cases. The Advisory Committee's Note to FRE 404 makes clear that the rule was intended in civil cases to limit proof of character for purposes of proving action in conformity therewith to proof of character for truthfulness pursuant to FRE 607-609.

(3) Inadmissible. See above. It could be argued, however, as Professor Jonakait has suggested, that the defendant should be able to present evidence that he was familiar with the plaintiffs reputation as a bully. This evidence would be admissible not to show action in conformity therewith, but to show defendant's state of mind, which is relevant to self-defense.

(4) The court should not have permitted the defendant to prove his good reputation either for peacefulness or truthfulness. Once the error is made, the plaintiff should be allowed to "fight fire with fire." This would mean being allowed to attack defendant's evidence and being allowed to put on affirmative evidence. Offsetting errors of this type (that is, the admission of marginally relevant evidence with the potentials for prejudice offset) would not cause reversal on appeal.

Further discussion:

A basic policy issue is whether the differences between the civil and criminal contexts justify different character evidence rules. See Falknor, "Extrinsic Factors Affecting Admissibility," 10 RUTGERS L. REV. 574, 581-84 (1956), where Professor Falknor argues that instead of a general exclusion in civil cases, there should be a Rule 403 balancing in each case. The next two cases, Crumpton v. Confederation Life Insurance Co. (252), 672 F.2d 1248 (5th Cir. 1982), and Ginter v. Northwestern Mutual Life Insurance Co. (255), 576 F. Supp. 627 (E.D. Ky. 1984), provide ample opportunity to discuss the pros and cons of this issue.

Problem - The Acrobatic Driver (257)

The point:

Evidence of a person's reputation for recklessness or carelessness is inadmissible to prove that the person was reckless or careless on the occasion of the litigated event.

Answer and Analysis:

Wl's testimony is to a series of specific acts from which the factfinder is to draw the inference that B was a reckless driver, which would make it more likely that B ran the stop sign. This is general propensity logic and is barred by FRE 404(a).

W2's testimony about B's reputation for recklessness is likewise offered to show B's general propensity, hence to prove it likely that he ran the stop sign. This mode of logic is barred by FRE 404(a) regardless of whether the form of proof is reputation or specific acts.

Phinney v. Detroit United Railway Company, 232 Mich. 399, 205 N.W. 124 (1925)

Elford's testimony as to the motorman's reputation for recklessness was excluded because it violated the propensity rule. The purpose of proving that Hinkley was reckless in general was to provide a basis for inferring that he acted recklessly on the particular occasion of this accident. Evidence of specific acts of recklessness would not have been admissible. They would simply have provided a different mode of proving Hinkley's general propensity.

Two qualifications should be noted. If the specific acts were similar to the accident, showing that Hinkley had a history of running through intersections at high speed and not making all-out efforts to stop when the track was obstructed by a car, then such evidence might be admitted to show that Hinkley had a specific propensity to act as he is alleged to have acted in causing this accident. See the discussion in United States v. Trenkler.

Second, plaintiff could sue the railroad company for negligence in employing Hinkley as a motorman knowing that he was reckless. On such a theory, evidence of Hinkley's recklessness would be relevant in proving that the company was on notice. See discussion of Clark v. Stewart (261) and Problem - The Why Concert (261), below.

Dallas Railway & Terminal Company v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950)(259)

The plaintiff offered proof of specific acts that showed that the motorman was in a hurry on the particular trip on which he allegedly caused the plaintiff 's injury. This proof was not barred by the propensity rule because the proof was not offered to prove the motorman's general propensity.

One could argue that the plaintiff proved the driver's general propensity to hurry on this particular trip. The idea of generality which is so central and important to the operation and application of the propensity rule is necessarily imprecise and could be manipulated in this way. Yet the underlying concept does not evaporate: here the plaintiff's proof bears on the motorman's state of mind in a time-limited frame immediately preceding the accident.

Problem - The Why Concert (261)

The point:

Evidence of similar occurrences is relevant and admissible when offered to show notice of dangerous conditions. The substantive elements of a cause of action and its defenses dictate whether in a particular situation evidence of other acts is admissible for a specific relevant purpose. Application of this rule in civil cases is the equivalent of Rule 404(b) in the criminal context.

Answer and Analysis:

W's testimony should be admitted to show that the defendants knew, or should have known, that a dangerous condition existed during rock concerts at the Coliseum. The promoter may argue that he is not put on notice because W's testimony goes only to the Coliseum and not to all concert promoters, but this is rebuttal evidence that goes to weight, not admissibility. Defendants may also argue that the other concerts were remote, distinct, and different events, from which no conclusions can be drawn about what they knew about the particular Why concert. This also goes to weight, but the judge will have to take these arguments into account in balancing probativeness against waste of time and confusion under Rule 403. Interestingly, defendants might actually have introduced the very same evidence, and evidence that Peter knew about the crowded condition of the last twelve concerts, as a part of establishing its defense of assumption of risk.

Clark v. Stewart,126 Ohio St. 263, 185 N.E. 71 (1933) (261)

Counsel asks the defendant about Walter's specific acts of negligence in driving, and about Walter's reputation as a fast driver. These questions are relevant to the issue of negligent entrustment. The defendant is entitled to an instruction that the jury should not consider such actions or reputation in-determining what happened on the occasion of the litigated event.

The actual transcript of the cross-examination is included to stimulate discussion about-the tactical soundness and form of the questioning. Although evidence of prior accidents and defendant's son's reputation as a reckless driver are proper, the interrogating attorney asks questions without apparent basis, asks trick questions, and is generally disrespectful of the witness. An attorney who uses such tactics runs the risk of alienating the jury to the detriment of his case, although that did not happen in this case. (Note who is appealing.)

Objection could be made to the examination on the grounds that counsel must have a good-faith basis for asking questions which suggest bad acts by the defendant, and must not, in asking his questions, assume facts not in evidence. Questions which assumed facts not in evidence or were trick questions of the "when did you stop beating your wife?" variety were:

"You have ridden with him when he drove the car sixty miles an hour, haven't you?"

"Were you riding with Walter in the latter part of May, 1930 when he was traveling very fast and ran into an automobile at Flenner's Comer?"

"Don't you know Walter had the reputation of driving fifty or sixty miles per hour?"

Problem - The Soo Line Smash (264)

The point:

Evidence that is offered merely to show a propensity is inadmissible.

Answer and Analysis:

The analysis should start with the question: what is this evidence offered to prove? One possibility is some kind of specific negiligence or dangerous condition that is relevant to the accident in this case, such as in Farnsworth and the following Exum case, but the evidence is too general for this purpose. Another possible purpose is to prove notice of a dangerous condition, but again, the evidence seems too general. Rather, at best, the evidence is that the Soo Line is a rather careless railroad, which is strictly propensity logic, and thus inadmissible.

Exum v. General Electric Co., 819 F.2d 1158 (D.C. Cir. 1987)(255)

This case is a good example of evidence of similar acts in a civil case used to prove dangerous and/or notice, and the degree of similarity that may be required. This evidence goes way beyond the propensity-only evidence of Problem - The Soo Line Smash in its specificity, and therefore it is admissible. But the question is ultimately one of degree, and therefore it is somewhat unusual to encounter a reversal in this area of trial-court discretion.


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