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Character Evidence Rule 106: Rule of Completeness United States v. Castro-Cabrera Prosecution for illegal reentry after deportation Defendant claims citizenship through mother’s status Prosecution offers this exchange with the defendant to prove alien status: Q: Of what country are you a citizen? A: Hopefully United States through my mother Completing the Defendant’s Previous Statement The Defense argues that the prosecution’s statement should not be admitted without the defendant’s previous answer: Q: What country are you a citizen of now? A: I guess Mexico until my mother files a petition. Complications What if the exchange occurred during a plea bargaining session relating to a previous charge of illegal entry? Could the government introduce the exchange? Could Castro-Cabrera? Castro-Cabrera offered evidence that he returned to the United States because his mother was dying; the government objected to this evidence as irrelevant to the charge of illegal reentry, which requires simply an intent to enter the country. How should the court rule on the relevance objection? Missile Protest During the early 1980s, Walter Ward Dorrell III was protesting U.S. development of the MX missile. Dorrell entered Vandenburg Air Force Base, where the missile had been tested, and spray painted political slogans on the wall of the missile assembly building. When apprehended by security officers, Dorrell admitted that he intended to destroy the missile; he was carrying a sledgehammer and other tools. Dorrell confessed orally to this intent, and confirmed it with a handwritten confession. Missile Protest At trial, the government offered the portions of Dorrell’s written confession in which he admitted an intent to “pound the missile into scrap metal.” But it omitted parts of the confession in which Dorrell outlined his motive for the crime: Dorrell described a variety of political and religious motivations for his intended acts, saying destruction of the missile was necessary to avoid nuclear war and address world starvation. More on Completeness Judges sometimes allow parties to “complete” oral statements under Rule 611(a) Most circuits interpret 106 as a rule of timing There are serious fairness issues that come up in this context Character Evidence Other Crimes, Wrongs and Acts “Noncharacter Purposes” “Character Evidence” Its Myriad Uses “Character” Evidence Witness’s Propensity to Lie He’s a He has a He Lied Liar Tendency on the to Lie Stand Proof of Conduct by Propensity Violent Tendency Assaulted to Assault Plaintiff Rule 404(a)(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. “Character” Evidence Proof of a Witness’s Propensity to Lie • X-examine on acts • Character witness • Criminal conviction “Character” Evidence Proof of a Witness’s Proof of Party’s Propensity to Lie Conduct by Propensity • X-examine on acts • Usually forbidden • Character witness • Exceptions • Criminal conviction “Character” Evidence Proof of a Witness’s Proof of Party’s Propensity to Lie Conduct by Propensity • X-examine on acts • Usually forbidden • Character witness • Exceptions • Criminal conviction Character as Element • Proof allowed “Character” Evidence Proof of a Witness’s Proof of Party’s Propensity to Lie Conduct by Propensity • X-examine on acts • Usually forbidden • Character witness • Exceptions • Criminal conviction Character as Element Proof of Acts to Prove • Proof allowed Something OTHER THAN Propensity • Usually allowed Character as an Element Hollywood Cheapskates and Tightwads The worst celeb tippers are two of the richest folks in town— the Beckhams. Character as an Element What Kind of Evidence Can Beckham Use? David Beckham TMZ statement has a generous is false character Evidence Offered Can TMZ offer Beckham’s misdemeanor conviction for kicking a waiter who complained of no tip? Can Beckham have a friend testify that in his opinion Beckham is one of the most generous people in the world? How can TMZ respond? Character in Issue Character “in issue” occurs when an element of a claim, cause of action or defense calls for proof of a person’s character trait or disposition Because propensity is a legitimate part of the case it is not barred by Rule 404. Proof can be made by reputation, opinion or specific acts evidence. Recruit vs. Coach and School The basketball coach sent one of his players to the airport to pick up a high school recruit. The player ran a stop sign on the way back from the airport and hit a tractor trailer. The recruit was badly injured and sued the coach Negligent Entrustment The recruit’s legal theory is that the coach was negligent in choosing this player as a driver. Recruit wants to introduce following evidence. Which is permissible? Teammate who testifies that the player has a bad reputation as a driver Former passengers of the player who say that he often ran stop signs Teachers who say they saw the player drink and drive Examples of Character “In Issue” Defamation Entrapment Negligent entrustment Negligent hiring Custody determinations Seduction Blue vs. Jones In a slander action, Jones a Portland businessperson, allegedly called the Commissioner of Baseball, Vincent T. Blue, a lazy nerd after Portland was denied a major league baseball franchise. Which of the following evidence will be admissible? Blue vs. Jones Blue offers: Testimony that he worked past midnight on 18 previous occasions. Testimony that he has a reputation in baseball for being industrious Evidence that he is a peaceful, non- violent person Blue vs. Jones Jones offers: Testimony of Peter Potamkin, a former commissioner, who states that on his opinion, Blue was “lazy.” Evidence that Blue has a reputation among major league baseball owners for being excessively detail-oriented and always on his computer. United States v. Lorean The defendant, Lorean, is charged with possession with intent to distribute cocaine after a government “sting” operation. Lorean admits possession but says he was entrapped. The jurisdiction uses a subjective test. To prove entrapment, one needs to show that the police induced or created the crime and that the defendant was not predisposed to committing the crime charged. United States v. Lorean The defendant offers the following evidence: Testimony by Lorean’s father that his son would never violate any criminal law whatsoever. To his father’s knowledge, his son had only violated the law once , when as a child he stole a ball from a local five and dime store United States v. Lorean Defense offers testimony of Lorean’s brother who says, in his opinion, Lorean is an extremely honest person. The prosecution offers evidence that Lorean was arrested for possession of marijuana fifteen years prior to trial. What, if any, will be admissible? Damages Loss of consortium Lost wages Pain and suffering Continuum of Character Evidence General character: likely behavior across many different sorts of situations Character traits: behavior in a narrow set of circumstances “Non-character” specific acts under Rule 404(b): behavior in even more narrow circumstances Habit: covered by Rule 406 Analyzing Character Evidence Problems Is this testimony being offered “character” evidence? If yes, what is the purpose for which evidence of a person’s character is being offered? Is the person’s character itself a material fact? Summary of Character Evidence Propensity evidence is the circumstantial use of character evidence to prove conduct on a particular occasion. Credibility evidence is a special type of character evidence dealing with the propensity of a witness to be truthful. Summary: Character in Issue Character is in issue when it is an element of a claim, cause of action, or defense. This only occurs in limited situations, e.g. seduction actions, subjective entrapment issues, negligent hiring or entrustment cases, or defamation actions. .
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