Rule 404

Question 1

Rule 404(a)(1)

Answer 1

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Question 2

Rule 404(a)(2)

Answer 2

6 types of evidence which only applies to CRIMINAL cases:

1. Defendant can present evidence of his own character
2. Then the prosecution can rebut this
3. Defendant can present evidence of victim’s character

Prosecution can now do two things:

4. Rebut victim’s character
5. Say that defendant has the same character trait
6. Homicide provision: if Defendant presents any evidence that victim was first aggressor, then prosecution can offer evidence of victim’s trait of peacefulness

Question 3

Rule 404(a)(3)

Answer 3

Character evidence exceptions for a witness: witness’s character may be admitted under Rules 607, 608, 609

Question 4

Reverse 404(b)

Answer 4

Evidence of crimes or bad acts committed by persons other than the defendant is admissible so long as its probative value is not substantially outweighed by the danger.

Question 5

Character propensity

Answer 5

trying to use the character trait to prove that something happened

Question 6

When does character evidence come in?

Answer 6

if it is an element of a claim – will come up mostly in cases of:

1. Custody determination
2. Libel/slander
3. Entrapment

Question 7

How to write about rule 404(b) on test:

Answer 7

1. Articulate relevant 404(b) motive
2. Conditional relevance - is there sufficient evidence to support a finding that this person committed this other act
3. Then 403 balancing

Question 8

Other exceptions (in addition to exceptions in criminal cases) to character evidence being admitted:

Answer 8

1. Witness character under Rules 607-609.
2. Child molestation 413/415
3. When character itself is at issue

Question 9

Rule 404(b)(1)

Answer 9

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

Question 10

Rule 404(b)(2)

Answer 10

Evidence may be admissible for another purpose such as proving:

• Motive
• Opportunity
• Intent
• Preparation
• Plan
• Knowledge
• Identity
• Absence of mistake
• Lack of accident

On request by D prosecution must provide reasonable notice.

Question 11

Proof of identity

Answer 11

Proof through M.O. (Modus Operandi)

This goes to identity → says that “this could not be anyone else’s crime” rather than character, which says “this is the defendant’s kind of crime”

Question 12

Huddleston standard

Answer 12

= Conditional Relevance Standard

Judge has to determine that there is sufficient evidence that a jury could find by a preponderance of the evidence that D committed other act. Evidence admitted on the condition that the proof is introduced later.

Acquittal standard: Beyond a reasonable doubt

Civil standard: preponderance of evidence

So prior acquittal crime can be brought in.

Other act evidence is a conditional relevance issue → must address this every time there is other act evidence

Then apply 403 balancing

Question 13

Rule 404(a) pertinent character trait

Answer 13

Has to be a pertinent character trait

Bias is not an attack on the truthfulness or untruthfulness of a witness.

Character evidence of a witness, in order to be pertinent, must bear on the witnesses’ character for truthfulness.