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My bar review course posed this question, and I'm not sure I agree with them. Please advise?

In which of the following situations may the prosecution introduce evidence of the defendant’s bad character to establish she probably committed the crime charged?

A: Where character is directly in issue in the case.
B: Where the defendant first introduces evidence of her good character.
C: Where the defendant’s bad character shows that she is more likely to have committed the crime of which she is accused.
D: Where the defendant chooses to testify.

Answer:

[+] Spoiler

I chose A, their answer is B. Their explanation: If the defendant introduces evidence of her good character, she puts her character in issue and the prosecution may rebut by presenting evidence of the defendant’s bad character. The general rule is that the prosecution cannot initiate evidence of the defendant’s bad character merely to show that she is more likely to have committed the crime of which she is accused. However, if the defendant puts her good character into issue, the prosecution may rebut with evidence of the defendant’s bad character. Character evidence is admissible in civil cases where character is directly in issue (i.e., defamation, negligent hiring). This rule does not apply to criminal cases.
A defendant who testifies does not put her character in issue merely by testifying in the case; however, she does put her credibility into issue by testifying, and may be impeached.

My thoughts:

[+] Spoiler

1) this is a badly worded question 2) Where does it say that the "character directly in issue" exception is limited to civil cases? What about an entrapment defense in crim cases?

estefanchanning wrote:My bar review course posed this question, and I'm not sure I agree with them. Please advise?

In which of the following situations may the prosecution introduce evidence of the defendant’s bad character to establish she probably committed the crime charged?

A: Where character is directly in issue in the case.
B: Where the defendant first introduces evidence of her good character.
C: Where the defendant’s bad character shows that she is more likely to have committed the crime of which she is accused.
D: Where the defendant chooses to testify.

Answer:

[+] Spoiler

I chose A, their answer is B. Their explanation: If the defendant introduces evidence of her good character, she puts her character in issue and the prosecution may rebut by presenting evidence of the defendant’s bad character. The general rule is that the prosecution cannot initiate evidence of the defendant’s bad character merely to show that she is more likely to have committed the crime of which she is accused. However, if the defendant puts her good character into issue, the prosecution may rebut with evidence of the defendant’s bad character. Character evidence is admissible in civil cases where character is directly in issue (i.e., defamation, negligent hiring). This rule does not apply to criminal cases.
A defendant who testifies does not put her character in issue merely by testifying in the case; however, she does put her credibility into issue by testifying, and may be impeached.

My thoughts:

[+] Spoiler

1) this is a badly worded question 2) Where does it say that the "character directly in issue" exception is limited to civil cases? What about an entrapment defense in crim cases?

It's been a few years since the bar so take this with a grain of salt. Second, the question is not poorly worded. Responding to your questions in reverse order, the FRE doesn't limit character exceptions to civil cases - it limits the introduction of character evidence in criminal cases though. Second, you obviously understand that this is a crim case since its the prosecution introducing evidence. All you really have to recall is that one must open the door before the other door can be opened. You can surmise what the doors are when you read the correct response.

LockBox wrote:

estefanchanning wrote:My bar review course posed this question, and I'm not sure I agree with them. Please advise?

In which of the following situations may the prosecution introduce evidence of the defendant’s bad character to establish she probably committed the crime charged?

A: Where character is directly in issue in the case.
B: Where the defendant first introduces evidence of her good character.
C: Where the defendant’s bad character shows that she is more likely to have committed the crime of which she is accused.
D: Where the defendant chooses to testify.

Answer:

[+] Spoiler

I chose A, their answer is B. Their explanation: If the defendant introduces evidence of her good character, she puts her character in issue and the prosecution may rebut by presenting evidence of the defendant’s bad character. The general rule is that the prosecution cannot initiate evidence of the defendant’s bad character merely to show that she is more likely to have committed the crime of which she is accused. However, if the defendant puts her good character into issue, the prosecution may rebut with evidence of the defendant’s bad character. Character evidence is admissible in civil cases where character is directly in issue (i.e., defamation, negligent hiring). This rule does not apply to criminal cases.
A defendant who testifies does not put her character in issue merely by testifying in the case; however, she does put her credibility into issue by testifying, and may be impeached.

My thoughts:

[+] Spoiler

1) this is a badly worded question 2) Where does it say that the "character directly in issue" exception is limited to civil cases? What about an entrapment defense in crim cases?

It's been a few years since the bar so take this with a grain of salt. Second, the question is not poorly worded. Responding to your questions in reverse order, the FRE doesn't limit character exceptions to civil cases - it limits the introduction of character evidence in criminal cases though. Second, you obviously understand that this is a crim case since its the prosecution introducing evidence. All you really have to recall is that one must open the door before the other door can be opened. You can surmise what the doors are when you read the correct response.

Thank you for the response. I have another question. Their explanation says "Character evidence is admissible in civil cases where character is directly in issue (i.e., defamation, negligent hiring). This rule does not apply to criminal cases." Is this true? I was under the impression that character evidence is admissible in civil AND criminal cases where character is directly at issue, regardless if D opens the door. FRE 405 does not distinguish between civil or criminal

Character is at issue means charges like fraud, theft, etc


Generally, b is correct.

404 is your rule.

And more importantly, look at the question It's saying introduce character evidence to prove he committed the crime.

That's quite clearly a 404b1 question.

Yeah, rule 405 doesn't address when you can introduce evidence of character, just how you can do it (despite how it's worded). Rule 404 addresses when it's admissible.

(also character isn't actually at issue for fraud, theft, etc. any more than for any other offense. You don't get to say "this person committed fraud b/c he's a bad person" any more than you can say "this person committed assault b/c he's a bad person.")