Quick Evidence Question

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
Core
Posts: 977
Joined: Sun Oct 18, 2009 3:09 pm

Quick Evidence Question

Postby Core » Mon Dec 19, 2011 8:29 am

Can you bring in evidence of past acts for "other purposes" as defined in FRE 404(B) in civil cases in which the purpose you are bringing in the past act under 404(B) for is not to establish an element of the charge against D?

johndhi
Posts: 358
Joined: Sun Sep 27, 2009 11:25 am

Re: Quick Evidence Question

Postby johndhi » Mon Dec 19, 2011 1:28 pm

If your question is does Rule 402 (relevance) apply to admissible character evidence, the answer is yes. I'm not sure what else you could be talk about. Could you give an example?

User avatar
quiver
Posts: 864
Joined: Fri Feb 11, 2011 6:46 pm

Re: Quick Evidence Question

Postby quiver » Mon Dec 19, 2011 3:04 pm

Core wrote:Can you bring in evidence of past acts for "other purposes" as defined in FRE 404(B) in civil cases in which the purpose you are bringing in the past act under 404(B) for is not to establish an element of the charge against D?
I believe so, yes. 404(b) applies to civil cases even when character is not in issue.

Green Crayons
Posts: 123
Joined: Mon Jun 08, 2009 2:08 pm

Re: Quick Evidence Question

Postby Green Crayons » Mon Dec 19, 2011 9:12 pm

You need to think of 404(b)(2) and 405(b) as two separate routes around the 404(a)(1) and 404(b)(1) exclusion against character evidence. So:

- Basic Rule: No character evidence is permissible (either through general reputation, individual opinion, specific instance). 404(a)(1), (b)(1).

- Exception Group 1: "Not Used for Character." Can be used in any type of case, and are not limited in terms of the type of testimony as under 405 -- because the evidence is not being introduced as character evidence.
+ Exception 1: Habits. 406.
+ Exception 2. Similar Happenings.
+ Exception 3. Non-Character Use. 404(b)(2).
+ Exception 4. Impeachment Purposes. 404(a)(3).

- Exception Group 2: "Used for Character, but Permissible Anyways."
+ Exception 1: In a criminal case, either by the defendant in the first instance (but only re: the defendant or victim) OR, with that door opened, by the prosecution. 404(a)(2)(A)-(B). In a homicide case, door can be opened about peacefulness. 404(a)(2)(C).
++ BUT, if thus introduced, can only be admitted by general reputation or individual opinion testimony. 405(a). Specific instance testimony is impermissible, UNLESS on cross, and UNLESS if good faith belief that the specific instance testimony is probative of the veracity of that witness's "character evidence" testimony. And even then, can only be inquired into and not admitted.
+ Exception 2: In any type of case, can introduce the character evidence as character evidence if same is an essential element of the claim/charge/defense (rarely happens). 405(b). This can be admitted in general reputation, individual opinion, or specific instance testimony.


Edit. So, to answer your question: yes, you can admit evidence that may be argued as "character evidence" for a "non-character" use as under 404(b)(2) in any type of case, and without regards to any 405 restraints because the evidence is not being admitted as character evidence. But if the evidence was being introduced under 404(b)(2) in a criminal case, it would need to follow (A)-(B) of that rule.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: Google Feedfetcher and 2 guests