Friday, January 20, 2012

Evidence: Admissibility of Specific Instances of Conduct.

The following question was asked on the Asked & Answered Facebook page:

In evidence, in certain cases character evidence is allowed. In which cases can specific conduct be admissible?


In all the time I've been tutoring students for the MBE, character evidence is among the topics that have caused students the most amount of difficulty.

When discussing character evidence it's essential to distinguish between situations in which the evidence is being offered in a criminal case, and situations in which the evidence is being offered in a civil case. The analysis is different for each, and I'll begin with civil cases.

In a civil case, character evidence may be offered for substantive purposes (as opposed to simply for impeachment purposes) to prove character when it is the ultimate issue in a case. For the purposes of this particular question, it should be noted that in a civil case, if character evidence is permitted, there is no limit as to how that evidence can be offered. In other words, the evidence can be offered as opinion testimony, reputation testimony, or evidence as to specific acts.

It gets a bit more complicated in a criminal case. In a criminal case, the defense can "open the door" by offering positive character evidence about the defendant. The door can only be opened, however, in the form of opinion or reputation evidence. If the defense chooses to open the door by offering such evidence, then, and only then, can the prosecution rebut that evidence, by cross examining the defendant's character witness and asking that witness whether he is aware of specific instances of defendant's misconduct or by calling its own character witnesses to testify as to the defendant's bad reputation or to provide their negative opinions of the defendant.

The defense also has the option of offering reputation or opinion evidence as to the bad character of the victim when such evidence is relevant to prove the defendant's innocence (often in a self-defense context). If the defense chooses to open the door in this manner, then the prosecution can rebut that evidence by calling its own witnesses to give their positive opinions, or to testify as to the good reputation of the victim (or the defendant's bad reputation for the same trait,) but specific instances of misconduct are not allowed.

Finally, there are situations in which the prosecution can offer evidence of specific instances of defendant's misconduct, even though the defense has not yet opened the door by first calling up its own witnesses. That will only be true, however, if the evidence being offered is relevant to some issue other than the defendant's character. This is often stated as the MIMIC rule, which is a helpful mnemonic device for remembering the various reasons why such evidence might be offered. Specific instances of conduct can be offered by the prosecution to prove that: (1) defendant had a motive for committing the crime that is the subject of the current trial; (2) that defendant had the intent to commit the crime; (3) that the crime was not the result of an accident or mistake; (4) to prove the defendant's identity; or (5) to prove a common plan or scheme.

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